Mr Justice Vos:
- These actions arise from the well-known allegations of mobile telephone interception made against Mr Glenn Mulcaire, the second Defendant ("Mr Mulcaire"), a private investigator engaged by the News of the World (the "NotW"), a national Sunday newspaper. The 1st Defendant, News Group Newspapers Limited ("NGN"), is the proprietor of the NotW.
- Two actions are before me. They have been brought by two well-known figures, the football commentator Mr Andrew Gray ("Mr Gray"), and the comedian Mr Stephen Coogan ("Mr Coogan"), respectively. The actions are very similar indeed, so that these applications are being heard together. The same solicitors and counsel appear in both actions.
- In the broadest of outline, there are 3 substantive issues which I have to determine in each case:-
i) First, whether the court should make interim declarations that Mr Mulcaire is prevented from relying upon the privilege against self-incrimination (the "privilege" or "PSI") in respect of the claims against him by virtue of section 72 of the Senior Courts Act 1981.
ii) Secondly, whether the Claimants should be permitted to amend their Particulars of Claim to allege that Mr Mulcaire intercepted the Claimants' telephone voicemail messages specifically comprising or including what is pleaded as "commercial information".
iii) Thirdly, whether Mr Mulcaire should be required to give certain further information under Part 18 CPR in relation to his alleged telephone voicemail interception activities, particularly in relation to persons other than the Claimants.
- The first and second issues are related because the Claimants are seeking to amend their Particulars of Claim in order to support their objective of demonstrating that these proceedings are "for the infringement of rights pertaining to intellectual property" within the meaning of section 72(2)(a) of the Senior Courts Act1981. Only if that sub-section is satisfied will Mr Mulcaire's otherwise acknowledged right to take advantage of the privilege be abrogated by section 72.
- The first and third issues are also related since it is acknowledged that some of the requests for further information made by the Claimants stand or fall by Mr Mulcaire's right to invoke the privilege.
- The procedural course of these applications has been somewhat fitful, mainly because the parties started off by thinking that the outcome was entirely determined by the decision of Mann J in the related case of Nicola Phillips v. Glenn Mulcaire and others  EWHC 2952 (Ch) (the "Phillips case"). That case is now proceeding to the Court of Appeal, and is due to be heard in a window commencing at the end of May 2011. The parties are likely to wish to ask the Court of Appeal to hear an appeal from the decision I reach on the section 72 point at the same time as it hears the Phillips case. One of the reasons why I refused Mr Mulcaire's application further to adjourn the hearing of this case on Monday 14th February 2011 was in order to facilitate that possibility.
- As will appear in due course, Mann J did not have the benefit that I have had of extensive citation of relevant authority over a hearing lasting over 3 days in total. It would not be unfair to comment, I think, that the parties' awareness of the complexity of the issues raised by these applications grew as the hearing progressed. Indeed the central submissions made by each side on the crucial question as to the meaning of the words "commercial information" in the definition of "intellectual property" in section 72(5) of the Senior Courts Act 1981 only finally crystallised on the 15th February 2011. It is probably useful to set out the statutory provisions and those competing central submissions at the outset and before dealing in detail with the rather intricate facts that have given rise to these applications.
Section 72 of the Senior Court Act 1981
- Section 72 provides as follows under the heading: "[w]ithdrawal of privilege against incrimination of self or spouse in certain proceedings". I have highlighted the most important parts of the section:-
"(1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person … to proceedings for a related offence or for the recovery of a related penalty—
(a) from answering any question put to that person in the first-mentioned proceedings; or
(b) from complying with any order made in those proceedings.
(2) Subsection (1) applies to the following civil proceedings in the High Court, namely—
(a) proceedings for infringement of rights pertaining to any intellectual property or for passing off;
(b) proceedings brought to obtain disclosure of information relating to any infringement of such rights or to any passing off; and
(c) proceedings brought to prevent any apprehended infringement of such rights or any apprehended passing off.
(3) Subject to subsection (4), no statement or admission made by a person—
(a) in answering a question put to him in any proceedings to which subsection (1) applies; or
(b) in complying with any order made in any such proceedings,
shall, in proceedings for any related offence or for the recovery of any related penalty, be admissible in evidence against that person …
(4) Nothing in subsection (3) shall render any statement or admission made by a person as there mentioned inadmissible in evidence against that person in proceedings for perjury or contempt of court.
(5) In this section—
"intellectual property" means any patent, trade mark, copyright, design right, registered design, technical or commercial information or other intellectual property;
"related offence", in relation to any proceedings to which subsection (1) applies, means—
(a) in the case of proceedings within subsection (2)(a) or (b)—
(i) any offence committed by or in the course of the infringement or passing off to which those proceedings relate; or
(ii) any offence not within sub-paragraph (i) committed in connection with that infringement or passing off, being an offence involving fraud or dishonesty;
(b) in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings;
"related penalty", in relation to any proceedings to which subsection (1) applies means—
(a) in the case of proceedings within subsection (2)(a) or (b), any penalty incurred in respect of anything done or omitted in connection with the infringement or passing off to which those proceedings relate;
(b) in the case of proceedings within subsection (2)(c), any penalty incurred in respect of any act or omission revealed by the facts on which the plaintiff relies in those proceedings.
(6) Any reference in this section to civil proceedings in the High Court of any description includes a reference to proceedings on appeal arising out of civil proceedings in the High Court of that description".
The central submissions of the parties
- Mr Jeremy Reed, counsel for the Claimants in both actions, submitted that the words "technical or commercial information" in the definition of "intellectual property" in section 72(5) should be understood as if it read "protectable technical or commercial information". In the broadest outline, he contended that, if the commercial information was not protectable by a claim for breach of confidence, the proceedings could not be for "infringement of rights pertaining to any intellectual property" within section 72(2)(a). Put another way, therefore, the epithet "protectable" must be understood to describe the "technical or commercial information" intended to be covered because the claim in question must be a proceeding "for infringement of rights pertaining to [technical or commercial information]", and it could not be such a proceeding unless the commercial information in question could be protected by action.
- In consequence, Mr Reed submitted that the expression "commercial information" should cover any information with a commercial value which could be protected by an action for breach of confidence. He relies in this regard in particular on dicta of the majority of their Lordships in Douglas v. Hello! Ltd.  1 AC 1, and on the judgment of Lord Neuberger MR in Tchenguiz v. Imerman  EWCA Civ 908, to which I shall refer in more detail in due course. Mr Reed did not accept that "technical or commercial information", according to his definition, would not necessarily be regarded as "intellectual property" as normally understood, because he pointed to some 25 different statutory definitions of "intellectual property", submitting that the term had entirely different meanings in different contexts.
- Ms Alexandra Marzec, counsel for Mr Mulcaire, supported by Mr Anthony Hudson, counsel for NGN, argued that "commercial information" in section 72(5) had quite a different meaning. The definition should, she argued, be construed narrowly and purposively. "[C]ommercial information" must be construed in the context of the words that precede it, namely "technical or", and of the words that follow it, namely "or other intellectual property". It can, therefore, only include "commercial information" which is properly regarded as a species of intellectual property. She pointed to certain dicta in the Hello! case and other authorities to support the proposition that an action for breach of confidence is not an action for infringement of intellectual property rights, and that confidential information will not necessarily be intellectual property at all. In the context of this case, the kind of "commercial information" to which section 72(5) was referring, contended Ms Marzec, might include telephone messages describing an innovative design, or including words drafted creatively for a football article in a newspaper. But, she argued, ordinary pieces of information about footballers, managers, or a film production business, even though they might have commercial value could never constitute intellectual property, and could never, therefore come within the true meaning of "commercial information" in section 72(5).
- Before leaving my introduction to the arguments in this case, I should mention the only direct authority on the meaning of section 72(5), to which both sides referred. In A.T.&T. Istel Ltd. v. Tully  A.C. 45, the House of Lords had to consider whether section 72 applied to a claim to invoke the privilege by a defendant to an action for fraud and breach of trust. The decision turned ultimately on a finding that compliance with the order for disclosure would not create any real danger for the defendants of prejudice in criminal proceedings. Probably as a result, only Lord Lowry had anything to say about the meaning of section 72 and what he said was undoubtedly an obiter dictum. He said this at pages 64-65:-
"[Section 72] [s]ubsection (2) shows that the relevant information has to be intellectual property in order that s 72 may apply and the appellants submitted that the relevant information here is 'commercial information' within the meaning of sub-s (5). In my opinion, the information with which your Lordships are here concerned simply does not fit into the definition in the subsection. Even if it were not already obvious, the concluding words, 'or other intellectual property', show that the 'commercial information' which the definition contemplates must be information of the same type (ejusdem generis) as the other examples of intellectual property which are listed in sub-s (5). The information with which this case is concerned does not pass that test and this action is not concerned with the infringement of any rights pertaining to intellectual property. On this part of the case I respectfully agree with the observations of Lord Donaldson MR and Neill LJ in the Court of Appeal (see  2 All ER 28 at 35, 38,  1 QB 315 at 325, 328)".
- It is worth noting in passing that the Court of Appeal's judgments, to which Lord Lowry referred, turned primarily on the point that the action for fraud and breach of trust in that case was not an action for infringement of rights pertaining to any "intellectual property" as defined in section 72(5). Even though Mr Reed submitted that his definition of "commercial information" was or could be "intellectual property", he also submitted that, if he was wrong on that, Lord Lowry had been wrong to hold that "the 'commercial information' which the definition contemplates must be information of the same type (ejusdem generis) as the other examples of intellectual property which are listed in sub-s (5)".
- I turn now to deal with the factual background to these two cases.
- Mr Gray is a former international footballer, and, when the events in issue in these proceedings occurred in 2005 and 2006 and when these proceedings began, he was a football commentator and writer employed by Sky Sports. At the end of January 2011, he left Sky Sports in circumstances that were extensively rehearsed in the press, but have no relevance to the issues in these proceedings. He is now engaged as a Sports commentator by TalkSport. Mr Gray has one mobile telephone, upon which he regularly receives private calls and calls from footballers, football managers, agents, referees and other well-known individuals in sport and television.
- Mr Coogan is a well-known comedian, actor and producer. He is Chairman and a director of a production company called Baby Cow Productions Limited, and a director of associated companies (together "Baby Cow"). Mr Coogan too has one mobile telephone, and receives private calls and calls from business contacts on that telephone. He estimates that 70% of the messages he receives concern his professional life and work as an actor, writer, producer and a director of Baby Cow. These calls include those from other personnel at Baby Cow, Mr Coogan's agent, and calls relating to negotiations for contracts and projects with and involving Baby Cow.
- Mr. Mulcaire is a private investigator, who was contracted to the NotW to undertake "research assignments" from at least September 2001. He did not have a desk at the NotW offices, but was subject to an exclusivity clause, even though there is, I was told, an issue as to whether he worked for other organisations in addition to the NotW at the relevant times.
- It is alleged in both these proceedings that "commencing on a date unknown", NGN and Mr Mulcaire "acting in concert, intercepted and listened to [Mr Gray's and Mr Coogan's] mobile phone voicemail messages … and kept notes, records, and recordings relating thereto". In both cases, it is alleged that the interceptions took place to the best of the Claimants' belief "in the period from February 2005 to August 2006".
- Mr Mulcaire was arrested in August 2006, and was charged with mobile phone voicemail interception, along with Mr. Clive Goodman, the then Royal editor of the NotW ("Mr Goodman").
- On 29th November 2006, Mr Mulcaire and Mr Goodman pleaded guilty to an offence of conspiracy to intercept communications contrary to section 1(1) of the Criminal Law Act 1977 in respect of the interception of the voicemails of 3 members of the Royal Household. Mr Mulcaire pleaded guilty also to 5 further offences contrary to section 1(1) of the Regulation of Investigatory Powers Act 2000 relating to the interception of voicemail messages left for 5 non-Royal, but high profile personalities being Mr Max Clifford ("Mr Clifford"), Mr Gordon Taylor ("Mr Taylor"), Mr Simon Hughes M.P. ("Mr Hughes"), Mr Skylet Andrew ("Mr Andrew") and Ms Elle MacPherson ("Ms MacPherson").
- On 26th January 2007, Gross J sentenced Mr. Mulcaire to 6 months imprisonment, and Mr Goodman to 4 months imprisonment. In the course of the sentencing hearing, Mr Mulcaire's counsel submitted that the interception of the non-Royal victims had not been undertaken for Mr Goodman, but for others in the same organisation. Moreover, prosecuting counsel told Gross J that "the evidence from the experts is that, once connected to a voice mailbox, the caller can begin listening to stored messages after approximately 9 seconds", and Gross J commented at a later stage that "[o]nce you have connected, it takes about 9 seconds to pick up the message. That is the evidence".
- On 25th May 2010, the Metropolitan Police wrote to Mr Coogan's Solicitors saying that they had completed a search of all the material that was seized as part of its investigation into the intercept activity of Mr Mulcaire and Mr Goodman in 2005/2006. The letter continued as follows: "There is some documentation in our possession to suggest that [Mr Coogan] may have been a person of interest to Mr Mulcaire. During the investigation, a piece of paper was found which contained the name Stephen J Coogan, together with [Mr Coogan's] mobile telephone number (…) account number (…) and Password (…). It appears these details were attributed to [Mr Coogan] by Mr Mulcaire. However, there is no documentation in our possession to indicate that your client's voicemail messages were unlawfully intercepted".
- Mr Gray issued and served these proceedings on 8th June 2010. The proceedings allege that:-
i) The Defendants intercepted and listened to Mr Gray's messages and kept notes, records and recordings as set out above.
ii) NGN procured and conspired in the acts of interception, intending to use the information for newspaper stories.
iii) NGN and Mr Mulcaire have misused and threatened to misuse Mr Gray's confidential information and private information.
iv) NGN and Mr Mulcaire have breached the equitable duty of confidence owed to Mr Gray, have invaded Mr Gray's privacy, and misused Mr Gray's private information.
v) Mr Gray is entitled to injunctions, damages and exemplary damages.
- On 7th July 2010, NGN served its defence to Mr Gray's claim. It pleaded as follows in response to the allegation of interception, listening and recording Mr Gray's messages: "Paragraph 28 is not admitted. The interception alleged in paragraph 28 is entirely speculative, unparticularised and not supported by any evidence. The Particulars of Claim disclose no reasonable grounds for bringing the claim and ought to be struck out".
- On 16th July 2010, Mr Mulcaire served his defence to Mr Gray's claim (which he later amended on 9th September 2010). Mr Mulcaire's pleading invokes the PSI, saying that making any response to the allegations would tend to expose him to proceedings for a criminal offence. As I have already indicated, it is accepted for the purposes of this hearing that this is correct, the only question being whether the provisions of section 72 prevent Mr Mulcaire relying on the privilege. Mr Mulcaire admits to intercepting the voicemails of the victims in the indictment, admits to intercepting and circulating the voicemails of a Ms. Jo Armstrong ("Ms Armstrong"), a victim who was not named in the indictment, but does not admit the involvement of NotW journalists in relation to Ms. Armstrong.
- On 5th October 2010, Floyd J (in Mr Gray's case) ordered disclosure of documents concerning Mr Mulcaire's alleged interception of Mr Gray's telephone against the Metropolitan Police. The first tranche of such documents was disclosed first to Mr Gray, and then to NGN, on 4th November 2010. None of Mr Mulcaire's telephone records was disclosed on that occasion. The information that I have been shown from this tranche of police disclosure comprises 8 pages apparently taken from Mr Mulcaire's manuscript notebooks. The pages have been heavily redacted. But they record Mr Gray's mobile phone number, direct dial message retrieval number, pin number and password. On one page, Mr Gray is shown as target number 6 on a list of 18 (otherwise redacted) targets. A number of pages have "Greg" apparently written in the top left corner of the page. This is alleged by Mr Reed to refer to Mr Greg Miskiw ("Mr Miskiw") a journalist who was at the relevant time with the NotW. Another page comprises a list of 6 redacted telephone numbers, suggested by Mr Reed to be numbers picked up from Mr Gray's voice mail box.
- On 12th October 2010, NGN filed its list of documents in Mr Gray's case, disclosing only 20 categories of documents in its control, not including any journalists' notebooks, and not listing any documents that were no longer in its control. Remarkably, the list stated that NGN had not searched for documents contained on or created by NGN's computer equipment.
- On 27th October 2011, Mr Gray's solicitors wrote to NGN's solicitors complaining about the inadequacy of NGN's list of documents and seeking 20 further categories of documents.
- On 9th November 2010, Mr Coogan issued his proceedings making the same claims as in Mr Gray's case. On 22nd December 2010, NGN served its defence to Mr Coogan's claim in a similar form to that filed in Mr Gray's claim, and Mr Mulcaire served his defence, also in similar form, in December 2010, though the document is undated.
- Mann J gave judgment in the Phillips' case on 17th November 2010. In that case, Ms Nicola Phillips, a former assistant of Mr Clifford, brought an action against the same defendants, and Mr. Mulcaire had also refused to answer a number of questions relating to his telephone interception activities. Mann J held that section 72 prevented Mr. Mulcaire relying on the PSI. The thrust of Mann J's reasoning is contained in paragraph 45 of his judgment as follows:-
"Although this action cannot be regarded as a typical commercial confidentiality case, I consider that Mr Wilson is right in the case that he seeks to make under this head. The fact that someone has rung, and the message, is plainly capable of being confidential. It is also capable of having a real commercial value to Ms Phillips and Mr Clifford. Part of Mr Clifford's business involves the management and publication of information and the management of publicity itself. The information received over the telephone is capable of assisting that process (which is doubtless why someone thought hacking could be a useful thing to do). It is not necessarily information which one could easily sell, or which has the same obviously confidential and commercial quality as, say, a customer list, or a description of a secret process, but in my view "commercial information" within the Act is a broad expression and is not confined to such things. It has to be information which relates to commerce (or business) and within that context to have a confidential quality (so as to be properly described as "intellectual property"). Some of the information that arrived in Ms Phillips' voicemail box would have those qualities. Furthermore, on the assumption that the facts pleaded are true (which must be the assumption on which I approach this application), it hardly lies in the mouth of Mr Mulcaire to say that the information was not commercial information. It would have a value to the person who engaged him to obtain it, and would therefore have a value to him. If it were not of some commercial value (in the sense of being exploitable in commerce) then he would not be looking for it in the first place. It is presumably being sought in order to get an insight into Mr Clifford's business which would otherwise not be available. That makes it commercial information" (emphasis added).
- Mr. Mulcaire has now appealed Mann J's decision, with permission granted by Mann J.
- On 19th November 2010, Mr Gray issued an application notice seeking:-
i) An interim declaration that Mr Mulcaire was prevented from relying upon the PSI in respect of Mr Gray's claim, his defence and his answers to requests for further information ("RFIs") by virtue of section 72 of the Senior Courts Act 1981.
ii) An order that Mr Mulcaire provide full answers to Requests 1 to 12 of the Claimant's Part 18 RFI.
iii) An order that the paragraphs of Mr Mulcaire's Defence referring to the PSI be struck out, with permission to serve a re-amended Defence.
- On 3rd December 2010, Mr Gray's case came before me, whilst I was sitting in the applications' court. The parties agreed that Mr Mulcaire would not oppose the orders sought in relation to PSI, provided that Mr Gray agreed that Mr Mulcaire should have permission to appeal, and the appeal could be heard at the same time as the appeal in the Phillips case. In the result, however, I indicated that I was not content to grant permission to appeal from a judgment I had not given, and that the facts might well be different in Mr Gray's case from the Phillips' case. Accordingly, I declined to make the agreed order sought and stood the matter over for further argument.
- On 6th December 2010, Mr Coogan issued an application notice seeking substantially the same relief in relation to the PSI and the strike out of Mr Mulcaire's defence, as in Mr Gray's application notice dated 19th November 2010.
- After further correspondence and chasing for further disclosure, NGN's solicitors indicated to Mr Gray's solicitors on Christmas Eve 2010 that: "we are not in a position to give you a substantive response to all those matters set out in your previous correspondence. There have been some developments since we were in receipt of [Mr Gray's] request which are requiring further time and investigation. Both we and [NGN] are fully aware of the likely, if not probable, application that you will issue in the New Year. While we appreciate that you will not be satisfied with the fact that we have not provided any substantive answer, we can confirm that this matter is being taken seriously and we will be dealing with the specific disclosure request once all relevant information has been obtained …".
- On 14th January 2011, the Crown Prosecution Service announced that it would conduct a comprehensive assessment of all material in the possession of the Metropolitan Police Service relating to phone hacking "following developments in the civil courts". The announcement indicated that the exercise would involve an examination of all material considered as part of the original investigation into Mr Goodman and Mr Mulcaire and any material that had subsequently come to light. The review was to be undertaken by the Principal Legal Advisor, Ms Alison Levitt QC.
- On 17th January 2011, the Metropolitan Police disclosed further documentation to Mr Gray, including some of Mr Mulcaire's billing data in respect of calls from a landline number ending in the digits "3765" for the period from 24th January 2006 to 17th February 2006, and in respect of calls from a landline number ending in the digits "3328" from 1st December 2005 to 15th June 2006. These records appear to evidence 12 calls made from Mr Mulcaire's lines to Mr Gray's direct dial voicemail between the 7th February 2006 and 20th June 2006. The duration of these calls was: 1 at 2 seconds, 1 at 3 seconds, 1 at 5 seconds, 1 at 6 seconds, 2 at 7 seconds, 3 at 8 seconds, 1 at 10 seconds, and 2 at 11 seconds.
- On 18th January 2011, the applications concerning PSI and the RFIs came before me. In the course of argument, it became apparent that there was only exiguous evidence before the Court as to the kind of information that Mr Gray and Mr Coogan alleged had been obtained by the defendants. Mr Reed, counsel for both Claimants, requested that I adjourn the hearing to allow him to put in evidence from the Claimants on this question, and I acceded to his application.
- On 20th January 2011, Mr Gray's solicitors confirmed to NGN's solicitors that Mr Gray's case was not limited to the 12 calls set out in the Metropolitan Police's second tranche of disclosure.
- On 24th January 2011, the Director of Public Prosecutions issued a press release indicating that he had asked Ms Alison Levitt QC (who had had no previous involvement in the case) "to take a robust approach with a view to advising whether the Metropolitan Police Service should carry out any further investigation or deciding whether any prosecutions can be brought".
- On 25th January 2011, Mr Gray and Mr Coogan each made their first statement in these proceedings pursuant to the permission I had granted on 19th January 2011. Later the same day, Mr Gray's contract of employment with Sky Sports was terminated.
- On 26th January 2011, Roth J ordered (in Mr Coogan's case) disclosure of documents concerning Mr Mulcaire's alleged interception of Mr Coogan's telephone against the Metropolitan Police. That disclosure was due on 23rd February 2011.
- Also on the 26th January 2011, the Metropolitan Police issued a press release saying that the "MPS has today … received significant new information from News International relating to allegations of phone hacking at the [NotW] in 2005/06. As a result, the MPS is launching a new investigation to consider this material …".
- On 10th February 2011, each of the Claimants issued application notices seeking permission to amend their Particulars of Claim in similar form. The application notices stated expressly that a point had arisen in the course of the hearing of the PSI application as to whether the pleaded claims encompassed commercial information as a sub-species of confidential information, and that the amendment was to clarify that they did, even though the Claimants contended that commercial information was already implicitly included in the existing Particulars of Claim.
- On 14th February 2011, the matter came back before me for further argument, which eventually lasted nearly three court days. I was told that on 15th February 2011 a detective from the Metropolitan Police called Mr Gray's solicitors asking to meet Mr Gray to go through some documents with him, suggesting that he would be shown some new documents that have not yet been disclosed in these proceedings and un-redacted versions of some that have.
The Amended Particulars of Claim
- The draft amendments to the Particulars of Claim in Mr Gray's case include the following paragraphs (with the amendments underlined in the normal way). I have included some of the un-amended paragraphs so that the amendments can be better understood:-
"4. Mr Gray regularly receives calls to his mobile phone from a number of people including:
4.1 Family, friends and associates;
4.4 Football managers;
4.5 Football agents;
4.6 Football referees;
4.7 Other well-known individuals in sport and television;
4.8 Personal telephone calls;
4.9 Individuals with whom the Claimant is in a relationship; and
4.10 Calls relating to medical, financial, legal and business matters.
5. Mr Gray, and some of the people that call Mr Gray on his mobile telephone, are well-known to the public in the United Kingdom who have an interest in football. Mr Gray and some of the persons who telephone him are prone to be the subject of stories in newspapers including the News of the World.
6. The aforesaid callers frequently leave voicemail messages for Mr Gray on his mobile phone. Mr Gray typically receives in the region of 10-15 voicemail messages on his mobile phone on an average day, but up to about 20-25 voicemail messages per day at peak times.
7. Mr Gray regularly leaves voicemail messages for the same people who are likely to leave messages for him.
8. The messages left for Mr Gray contain a variety of different categories of private and confidential information, that confidential information including both personal and commercial information.
8.1 Callers often leave their name and telephone number so that Mr Gray can return their call, along with other information such as the purpose of the call and facts relating thereto.
8.2 In any event, the voicemail automatically logs the time and date when the message was recorded, together with the telephone number of the caller leaving the message.
8.3 Mr Gray's partner, family and friends often leave messages concerning their dealings or ordinary day-to-day relationships with him, including details such as times and places to meet, private functions that he is attending, and other private information about or involving Mr Gray, or private information about themselves.
8.4 The messages sometimes contain factual information, some of which is private information and some of which is confidential information (that confidential information including both personal and commercial information). The information might include private and/or confidential information relating to football, business, health, finances and personal relationships. Further examples of the kinds of commercial information ordinarily left on Mr Gray's voicemails are set out in the witness statement of Mr Gray dated 25th January 2011.
9. Mr Gray regularly telephones people, including those people and categories of people set out at paragraph 4 above, and leaves voicemail messages on their mobile phones from time to time.
10. The messages left by Mr Gray contain a variety of different categories of private and confidential information, that confidential information including both personal and commercial information. Such messages contain information similar to that set out in paragraph 8 above. The voicemail message envelope automatically includes the telephone number of the phone used by Mr Gray to leave the voicemail message".
- The equivalent paragraphs in Mr Coogan's draft amended Particulars of Claim are in substantially identical form save that:-
i) Paragraphs 4.3 to 4.9 are replaced in Mr Coogan's claim with references to actors, comedians, television producers, directors, scriptwriters and agents.
ii) There are no references in Mr Coogan's claim to football, and the reference to football in paragraph 8.4 is replaced by the word "films".
iii) Mr Coogan receives typically 4 or 5 voicemail messages per day with 8 or 9 per day at peak times.
iv) There is no reference to Mr Coogan having a partner.
v) The reference to Mr Gray's statement is replaced by a reference to Mr Coogan's statement.
- As I have indicated above, paragraph 28 of Mr Gray's Particulars of Claim alleges that the Defendants acting in concert intercepted and listened to Mr Gray's messages and kept notes, records and recordings relating to them. The particulars given are too lengthy to be set out in their entirety, but make detailed allegations about the interception which was the subject of the criminal proceedings against Mr Mulcaire and Mr Goodman, and of that relating to Ms Armstrong, plead Mr Mulcaire's alleged modus operandi as to interception, pleads the details of the settlement of other claims against NGN including one brought by Mr Clifford, allege that Mr Mulcaire's interception was on an "industrial scale", and refer to certain articles in the NotW concerning Mr Gray's private life as the motive for the interception (though not as being the result of any specific acts of interception).
- I should set out paragraphs 28.11 in both Mr Gray's and Mr Coogan's Particulars of Claim as follows:-
i) In Mr Gray's claim: "28.11 The Metropolitan Police have informed Mr Gray that they are in the possession of documentation which suggests that he was targeted by Mr Mulcaire, and that the documentation suggests that Mr Gray may have been the victim of mobile phone voicemail interception. The documentation was obtained as part of their investigation into the intercept activity of Mr Mulcaire and Mr Goodman in 2005/2006. The Metropolitan Police have refused to disclose the documentation to Mr Gray on the basis that it was obtained for the purposes of a criminal investigation, and cannot be disclosed without a court order (such an order pursuant to CPR 31.17)".
ii) In Mr Coogan's claim: "The Metropolitan Police have informed Mr Coogan that they are in the possession of documentation which suggests that he was targeted by Mr Mulcaire, such documentation including his name, the number of his mobile telephone, the account number for that telephone, and the Claimant's password associated therewith. The documentation was obtained as part of the investigation by the Metropolitan Police into the intercept activity of Mr Mulcaire and Mr Goodman in 2005/2006". Ms Marzec placed great reliance on the fact that this pleading did not reproduce the last part of the Metropolitan Police's letter dated 25th May 2010, set out above, to the effect that "there is no documentation in our possession to indicate that your client's voicemail messages were unlawfully intercepted".
- Paragraphs 31 and 32 of the two draft amended pleadings are in identical form. I shall set out only Mr Gray's claim as follows:-
"31. By reason of the matters aforesaid NGN has misused and threatened to misuse Mr Gray's confidential information and private information (including both personal and commercial information). Mr Gray will aver inter alia that the mere act of intercepting voicemail messages left for or by Mr Gray, or NGN's noting, retention, transcription or circulation of any information that it knows or has reason to believe has been obtained from the interception of Mr Gray's voicemails amounts to a misuse, alternatively a threatened misuse, of confidential information and private information. At trial the Claimant will seek relief in respect of all such acts.
32. By reason of the matters aforesaid Mr Mulcaire has misused and threatened to misuse Mr Gray's confidential information and private information (including both personal and commercial information). At trial the Claimant will seek relief in respect of all such acts".
Mr Gray's witness statement
- Mr Gray's statement was filed, as I have said, with a view to providing, for the first time, some first hand evidence as to the alleged commercial information that is alleged to have been intercepted by the Defendants. The statement explains Mr Gray's work at Sky Sports, and some of the other projects with which he has been involved including writing a weekly football column for the Irish Daily Star, and providing voiceovers for football computer games and advertisements. Mr Gray also explains how he receives business opportunities from his agent by messages on his mobile phone.
- Some extracts from paragraphs 24 to 47 of Mr Gray's statement provide the essence of his case as to commercial information and the interceptions about which he had personal knowledge as follows:-
"24. … I have reviewed some of the main football news stories in 2005 and 2006 to refresh my memory and, to the best of my recollection, I believe I knew of the following specific events in advance of them being publicly announced because of a call I made or received to one of my sources, or a voicemail I received:
a) The resignation of a certain Premiership team manager during the 2005/6 season;
b) The resignation of a certain Championship team manager during the 2005/6 season;
c) The appointment of a certain manager during the 2005/6 season; and
d) The transfer of a certain international player from a top European club to a Premiership team during the 2005/6 season.
25. I cannot recall whether I was given any of this particular information for these four examples by way of a telephone conversation or via a voicemail message, but I should say that I do receive voicemail messages that contain confidential information of this nature. For example, over the years there have been several instances where I have had the inside line on how players are negotiating for increased wages from their club (and vice versa, from the club's perspective) and how what each side is doing in private might be very different to what they are saying in public …
26. I also regard it as my commercial information, but in a different way. Whilst the player or agent might be telling me because they know me and trust me, they are not telling me because they are confiding in a friend – they are telling me in my capacity as a 'pundit'. The information I receive helps me to maintain a full and current understanding of the football world which is essential for me to be able to provide my services as a football expert to the various companies which retain me. It is useful to me to have information that other pundits do not have, as it gives me a commercial and competitive edge. I regard this "advance knowledge" as my commercial information. The confidentiality of that commercial information, by its very nature, will often be short-lived …
27. This is just the sort of information that I am given that gives me a commercial advantage, and it is just the sort of information that is left on my voicemail from time to time …
32. Examples of typical voicemail messages I receive, and received during 2005/2006, from my football sources are often along the following lines:
a) "Just heard [name of player] might not be fit for this weekend, give me a ring"
b) Just heard [name of player] is going to be returning to the team [following injury] this weekend, give me a ring"
c) "Just heard about [name of player] moving to [a club where he doesn't currently play], call me back"
d) "Just heard that [name of club] are going to put in an offer of £x for [name of player], call me back"
e) "Just heard that [name of a player] and [name of a player's teammate] had a bust up at the training ground this morning, call me back"; and
f) "Just heard that [name of manager] is going to be sacked, call me back"
35. Examples of typical voicemail messages I receive from my agent are often along the following lines:
a) "[A company] has been in touch and offered £x for you to [details of job]. If we play hard-ball we might get them up to £y but there is a risk they will go elsewhere. Call me back to discuss"
b) "[A company] has been in touch and want to extend your current contract by X years, call me back to discuss"
c) "[A company] has come back to me and confirmed that they are willing to increase their offer of £X to £Y, are you happy to go ahead?"
d) "I've finalised your appearance in the advert for X, and I managed to get them to agree to pay £Y."
42. However, at some point during February to April 2006 (I do not recall exactly when), I was notified by my mobile phone service provider, Vodafone, that they suspected that an unknown third party had attempted to access my voicemail account.
43. I was extremely distressed at this potential invasion of my privacy and, as advised by Vodafone, I immediately changed the PIN number for my voicemail account to guard against this happening again. The experience also caused me to change the way I manage my voicemail. Ever since then I tend to delete voicemail as soon as I have listened to them, so that should someone try to access my voicemail again there would be fewer or no messages for them to listen to.
45. The notification I received from Vodafone, and the subsequent events which led to me bringing this claim has made me suspicious about a few strange instances where I had not been alerted to the fact that a certain voicemail message had been left on my phone, or where a voicemail that I was told had been recorded was missing.
46. While I do not remember the specific dates or details due to the passage of time, I do recall several occasions where a person called me and asked why I had not called them back following an earlier voicemail message they left for me but which I did not recall receiving. On these occasions I would check my voicemail account for the message referred to. Sometimes I would then find the message as a saved message (as opposed to a new message) even though I was sure I had not listened to it previously. I now suspect this was because a person had accessed my voicemail account and listened to the message before I could.
47. Other times somebody would tell me that they had left me a message, but I would find no record of the message referred to. I now suspect that this was because a person had accessed my voicemail account, listened to the message and then deleted it."
Mr Coogan's witness statement
- Mr Coogan's statement explains his work as a comedian and an actor and as a director of Baby Cow. He says that approximately 70% of the messages left for him in 2005/06 on his mobile phone were business or commercial calls. Mr Coogan explains his professional and business commitments in 2005/06, and how most of the business messages for him come from other staff at Baby Cow, his agents, and colleagues in the TV and film industry. He speaks to directors in his capacity as an actor wanting work, and in his capacity as a producer contemplating engaging them.
- Some extracts from paragraphs 19 to 30 of Mr Coogan's statement provide the essence of his case as to commercial information and the interceptions about which he had personal knowledge as follows:-
"19. As I am often located away from Baby Cow's office I rely upon my partner Henry Normal to keep me updated on all aspects of our business. To the best of my recollection, voicemail messages left for me by Henry and by me for him during the relevant period would have regularly contained the following types of information:
a) sensitive financial information concerning how Baby Cow was performing as a company;
b) the current status of the various television shows and other projects Baby Cow was working on;
c) the current status of negotiations regarding the booking of various high profile artists to feature in Baby Cow Productions;
d) the current status of negotiations regarding the booking of film/TV directors for Baby Cow Productions;
e) the sums we were prepared to offer such artists/directors and discussion of what our negotiating tactics should be in trying to secure them;
f) the current status of then negotiations with BBC Worldwide for a stake in Baby Cow and the potential terms of such a deal;
g) the current status of negotiations to secure funding for Baby Cow projects and likely terms of funding;
h) Ideas for future potential Baby Cow projects;
i) Arrangements for the setting up of Baby Cow's Manchester office such as hiring premises and new staff; and
j) Miscellaneous important administrative and strategic decisions to be made regarding Baby Cow.
20. Henry and I would often leave detailed voicemails for each other about the progress of negotiations and our tactics. I would liken it to a game of chess. We might say: "We have to keep all details confidential at this stage" or "'That's sensitive so we need to be discreet" or "We must tell X this about that project", and so on. I would expect my messages to Henry to be for his ears only, and vice versa. We frequently had, via an exchange of voicemails, highly confidential discussions about our business tactics and commercial information concerning our business.
25. To the best of my recollection I also received voicemail messages from the following people during the relevant time containing highly confidential and/or commercially sensitive information:
a) My various managers and agents both in the United Kingdom and in the United States about potential offers of acting roles, the details of negotiations and the details of the concluded deals…
b) Potential new US agents and managers as during the relevant time I was in the process of changing my US representation …
c) My publicists Freud Communications regarding potential press coverage and particular newspaper stories about me; and
d) Directors, writers and other people I was collaborating with creatively with on ideas for projects and scripts.
26. By way of example, I have received voicemail messages from my agents along these lines: "Steve, so and so have offered £X, but if we hold out then I think we can call their bluff on this. Let me know your thoughts". My voicemails to and from my agents would include information about the negotiations, what people's stances were, and what our tactics should be in response. I regard this as being my commercially confidential information in relation to my acting business. I definitely left and received several voicemail messages containing this sort of information in 2005/2006.
28. In or around August 2005, I was notified by my mobile phone service provider Vodafone that they had noticed some suspicious activity regarding my account. They told me that a man had called one of their operators claiming to be me and tried to obtain various confidential details relating to my account. The operator's suspicions had been raised by the man's behaviour so they declined to disclose the information requested and informed me of what had happened. I did not make these calls so it was obviously someone posing as me in order to obtain access to my mobile phone account details. I was extremely concerned about this.
29. Around the same time I received a series of strange calls where I would answer and the caller would mumble something and then just hang up. Or someone would call asking to speak to a person's whose name I didn't recognise; then there would be a notable pause before the caller hung up. To my mind there was a clear difference between a call from someone who has simply dialled a wrong number where they ask to speak to somebody else and then quickly apologise when they realise the error (which I have received many times in the past) and those particular calls, which stood out in my mind as odd. I remember turning to a housemate on one occasion, just after receiving such a call, saying "that call was weird". I cannot be certain that this was in 2005/2006, but I think it was about then.
30. While I do not remember the specific dates or details due to the passage of time, I do recall several occasions where a person had called me to say that they had left me an earlier voicemail message but I was not aware of this. On these occasions I would check my voicemail account for the message the person said they had left but [could] not find it. While I suppose it is possible to attribute this to human or technical error, the events which led me to bring this claim now lead me to suspect that this may have been because a person had accessed my voicemail account, listened to the message and then deleted it".
Issue 1: Whether the court should make interim declarations that Mr Mulcaire is prevented from relying upon the PSI in respect of the claim against him by virtue of section 72 of the Senior Courts Act 1981?
The proper approach to construction
- I should start by dealing with the proper approach to construction of section 72.
- Ms Marzec has submitted, and I accept, that a provision depriving a person of such a fundamental right as the right to claim the privilege against self incrimination is to be strictly construed. This was made clear by Beldam LJ at page 337F-H in Sociedade Nacional de Combustiveis de Angola U.E.E. v. Lundqvist  2 Q.B. 310. In addition, the privilege is a right implied by the right to a fair trial embodied in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (see Saunders v. UK Case number 43/1994/490/572 at paragraph 68). Such rights are not, however, absolute and can be qualified. As Lord Bingham of Cornhill put the matter in Brown v. Stott (Procurator Fiscal, Dunfermline)  1 AC 681 at 704E: "Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper objective and if representing no greater qualification than the situation calls for".
- As it seems to me, the court should adopt a purposive construction of section 72. The history of the introduction of section 72 supports Ms Marzec's submission that it was intended to deal with a specific problem concerned with prevalent infringements of copyright. Parliament enacted section 72 in response to the House of Lords' decision in Rank Film Distributors Limited v. Video Information Centre  AC 380, to the effect that the defendant who had allegedly pirated films could rely on the PSI to resist answering interrogatories and disclosing details of the sale of infringing copies. Lord Russell of Killowen said at page 448F that he would welcome legislation along the lines of section 31 of the Theft Act 1968: "[i]nasmuch as the application of the privilege in question can go a long way in this and other analogous fields to deprive the owner of his just rights to the protection of his property".
- Ms Marzec has pointed to the limited purpose suggested by Lord Hailsham LC in the House of Lords' debate on what became section 72 as follows:-
"This is a very esoteric subject, which revolves around a most marvellous invention of a member of the Bar, called the Anton Piller order, which – if I may try to use more explicit language – is designed to save those reputable firms which are engaged in the production of video recordings from criminal and other breaches of their copyright and intellectual property by the use of illicit tape recordings.
I need not go into the details, but under an ordinary Anton Piller order the alleged infringer is made to answer questions. Very often, perhaps in most cases, an ingenious person on the other side of the battlefield discovered that he could be excused from answering these awkward questions by pleading what in America would be called the Fifth Amendment: that he might expose himself to criminal proceedings if the answered questions in a particular way. That caused a great rumpus because the victims of the practice, which is totally illicit, then complained that the whole protection of the Anton Piller order would be removed from them, and up to a point that was right. To quote Mr Gladstone: "The resources of civilisation have not wholly been exhausted" and the amendment which, as I say, is somewhat esoteric, seeks to remedy the situation in an even-handed way, by on the one hand requiring defendants in civil proceedings concerned with copyright and the like to answer the questions, whether or not incriminating, and, on the other hand, making any answers so given inadmissible in any criminal proceedings which might be instituted for related offences. This amendment was put together with commendable speed and I understand it has general support. It is slightly modelled – after all, plagiarism and excision are the true marks of the great draftsman – on section 31(1) of the Theft Act 1968, but I think it is unobjectionable and I hope the House will find it so, too" (Hansard, 28th July 1981, HL column 664).
Mr Mulcaire's submissions as to the construction of section 72(5)
- Against this background, Ms Marzec submitted that the words "commercial information" should be construed restrictively as referring to commercial information which is itself intellectual property. As she put it in her first skeleton argument: "Subsection (5) sets out various definitions of intellectual property, but it is clear from the concluding words "… or other intellectual property" that these are all meant to be sub-species of intellectual property and not different types of information that would not be recognisable as intellectual property". In argument, Ms Marzec submitted that a voicemail would only amount to "intellectual property" if it had value and a creative element, like a draft newspaper article, the recipe for Coca Cola, or a description of an innovative design for a new kind of kitchen appliance.
- In order to make good this construction, Ms Marzec drew my attention to a number of authorities and academic works in order to support the proposition that most species of confidential information would not properly be regarded as either "property" or "intellectual property". I should say this debate has been raging for many years, and I would not wish to take it further in this judgment than is strictly necessary. I will mention just a few of the commentaries as follows:-
- First, in Clerk & Lindsell on Torts 19th edition, 2006, at paragraph 28-03, the juridical basis of the action for breach of confidence is explained in the following terms:-
"There has been long-standing uncertainty as to how [the action for breach of confidence] should be categorised. Where the obligation of confidence arises (either expressly or impliedly) in a contractual relationship, the breach of confidence may be categorised as a breach of contract. However, the obligation can arise in a non-contractual setting … Courts are reluctant to categorise confidential information as property, and though there is some judicial support for its recognition as a tort, the most favoured basis for the action to date is that of an equitable principle of good faith".
- Secondly, paragraphs 2-030 to 2-066 of the 2nd edition of Toulson and Phipps on Confidentiality, 2006, include a lengthy exposition on the "conflicting views on information as property". That textbook cites the competing positions of Lords Upjohn and Hodson in Phipps v. Boardman  2 AC 46, where the majority favoured Lord Upjohn's view, which he expressed as follows:
"In general, information is not property at all. It is normally open to all who have eyes to read and ears to hear. The true test is to determine in what circumstances the information has been acquired. If it has been acquired in such circumstances that it would be a breach of confidence to disclose it to another, then courts of equity will restrain the recipient from communicating it to another. In such cases such confidential information is often and for many years has been described as the property of the donor, the books of authority are full of such references; knowledge of secret processes, "know-how", confidential information as to the prospects of a company or of someone's intention or the expected results of some horse race based on stable or other confidential information. But in the end the real truth is that it is not property in any normal sense, but equity will restrain its transmission to another if in breach of some confidential relationship".
- Toulson and Phipps continue at paragraph 2-056, after a consideration of the Hello! case in the Court of Appeal (which was as far as it had reached at that time) with this: "Although some forms of confidential information bear some similarity to some forms of intellectual property, any broad concept of confidential information as property would be hard to encapsulate. Confidential information involves information about some fact or idea, but a mere fact or private idea is not susceptible of ownership. It would be a strange form of property which would come into existence on the confidential acquisition of information about a fact or idea and cease to exist on its wider publication".
- Finally, Ms Marzec referred to some dicta in the dissenting speech of Lord Walker of Gestingthorpe in Hello!, which I will consider in a moment.
The Claimants' submissions as to the construction of section 72(5)
- In response, Mr Reed cited the Spycatcher case (A-G v Observer Limited  1 AC 109), the Hello! case and the recent decision of the Court of Appeal in Tchenguiz v. Imerman  EWCA Civ 908. These decisions dealt with widely disparate species of confidential information, and must be viewed in their individual contexts. But each is nonetheless important.
- In Spycatcher, Lord Goff of Chieveley sought to set out the general principles applicable to a breach of confidence claim as follows at pages 281A-282G:-
"I start with the broad general principle (which I do not intend in any way to be definitive) that a duty of confidence arises when confidential information comes to the knowledge of a person (the confidant) in circumstances where he has notice, or is held to have agreed, that the information is confidential, with the effect that it would be just in all the circumstances that he should be precluded from disclosing the information to others. I have used the word "notice" advisedly, in order to avoid the (here unnecessary) question of the extent to which actual knowledge is necessary; though I of course understand knowledge to include circumstances where the confidant has deliberately closed his eyes to the obvious. The existence of this broad general principle reflects the fact that there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection.
I realise that, in the vast majority of cases, in particular those concerned with trade secrets, the duty of confidence will arise from a transaction or relationship between the parties - often a contract, in which event the duty may arise by reason of either an express or an implied term of that contract. It is in such cases as these that the expressions "confider" and "confidant" are perhaps most aptly employed. But it is well settled that a duty of confidence may arise in equity independently of such cases; and I have expressed the circumstances in which the duty arises in broad terms, not merely to embrace those cases where a third party receives information from a person who is under a duty of confidence in respect of it, knowing that it has been disclosed by that person to him in breach of his duty of confidence, but also to include certain situations, beloved of law teachers - where an obviously confidential document is wafted by an electric fan out of a window into a crowded street, or where an obviously confidential document, such as a private diary, is dropped in a public place, and is then picked up by a passer-by. I also have in mind the situations where secrets of importance to national security come into the possession of members of the public - a point to which I shall refer in a moment. I have however deliberately avoided the fundamental question whether, contract apart, the duty lies simply "in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained" (see Moorgate Tobacco Co. Ltd. v. Philip Morris Ltd. (No. 2) (1984) 156 C.L.R. 414, 438, per Deane J., and see also Seager v. Copydex Ltd.  1 W.L.R. 923, 931, per Lord Denning M.R.), or whether confidential information may also be regarded as property (as to which see Dr Francis Gurry's valuable monograph on Breach of Confidence (1984), pp. 46-56 and Professors Birks' An Introduction to the Law of Restitution (1985), pp. 343-344). I would also, like Megarry J. in Coco v. A. N. Clark (Engineers) Ltd.  R.P.C. 41, 48, wish to keep open the question whether detriment to the plaintiff is an essential ingredient of an action for breach of confidence … To this broad general principle, there are three limiting principles to which I wish to refer. The first limiting principle (which is rather an expression of the scope of the duty) is highly relevant to this appeal. It is that the principle of confidentiality only applies to information to the extent that it is confidential. In particular, once it has entered what is usually called the public domain (which means no more than that the information in question is so generally accessible that, in all the circumstances, it cannot be regarded as confidential) then, as a general rule, the principle of confidentiality can have no application to it. I shall revert to this limiting principle at a later stage.
The second limiting principle is that the duty of confidence applies neither to useless information, nor to trivia. There is no need for me to develop this point.
The third limiting principle is of far greater importance. It is that, although the basis of the law's protection of confidence is that there is a public interest that confidences should be preserved and protected by the law, nevertheless that public interest may be outweighed by some other countervailing public interest which favours disclosure …".
- In Douglas v Hello!, all 5 members of the Committee of the House of Lords considered the nature of confidential information. The information in question in that case was a series of photographic images of the Douglas's wedding, where OK! magazine contracted for the sole right to take and publish photographs of the wedding, but a freelance photographer broke through the security and took photographs which he sold to Hello! magazine. The Court of Appeal had over-ruled the Judge and decided that OK! had no right to commercial confidence enforceable against Hello!, in relation to the details of the wedding or photographic images of the wedding. The House restored the Judge's decision by a majority of 3-2 on this point. The speeches repay consideration in their entirety, but I shall cite only some relatively short passages from 4 of the speeches.
- Lord Hoffmann gave the leading judgment for the majority. He explained the importance of the commercial value of confidential information, the difference between private and commercial information, and highlighted the contrasts between these kinds of right and intellectual property:-
"117. In my opinion Lindsay J was right. The point of which one should never lose sight is that OK! had paid £1m for the benefit of the obligation of confidence imposed upon all those present at the wedding in respect of any photographs of the wedding. That was quite clear. Unless there is some conceptual or policy reason why they should not have the benefit of that obligation, I cannot see why they were not entitled to enforce it. And in my opinion there are no such reasons. Provided that one keeps one's eye firmly on the money and why it was paid, the case is, as Lindsay J held, quite straightforward.
118. It is first necessary to avoid being distracted by the concepts of privacy and personal information. In recent years, English law has adapted the action for breach of confidence to provide a remedy for the unauthorized disclosure of personal information: see Campbell v MGN Ltd  2 AC 457. This development has been mediated by the analogy of the right to privacy conferred by article 8 of the European Convention on Human Rights and has required a balancing of that right against the right to freedom of expression conferred by Article 10. But this appeal is not concerned with the protection of privacy. Whatever may have been the position of the Douglases, who, as I mentioned, recovered damages for an invasion of their privacy, OK!'s claim is to protect commercially confidential information and nothing more. So your Lordships need not be concerned with Convention rights. OK! has no claim to privacy under article 8 nor can it make a claim which is parasitic upon the Douglases' right to privacy. The fact that the information happens to have been about the personal life of the Douglases is irrelevant. It could have been information about anything that a newspaper was willing to pay for. What matters is that the Douglases, by the way they arranged their wedding, were in a position to impose an obligation of confidence. They were in control of the information.
119. Is there any conceptual problem about the fact that the obligation of confidence was imposed only in respect of a particular form of information, namely, photographic images? I do not see why there should be. If OK! was willing to pay for the right to be the only source of that particular form of information and did not mind that others were free to communicate other forms of information about the wedding, then I think the Douglases should be able to impose a suitably limited obligation of confidence.
120. My noble and learned friends, Lord Nicholls of Birkenhead and Lord Walker of Gestingthorpe, are troubled by the fact that the information in the photographic images was not intended to be kept secret but to be published to the world by OK! and was so published at much the same time as the unauthorised photographs in Hello!. But I see no reason why there should not be an obligation of confidence for the purpose of enabling someone to be the only source of publication if that is something worth paying for. Why should a newspaper not be entitled to impose confidentiality on its journalists, sub-editors and so forth to whom it communicates information about some scoop which it intends to publish next day? …
123. The Court of Appeal's analysis, which treats the obligation of confidence as having been imposed in favour of OK! only in respect of the photographs with which it was supplied by the Douglases, also seems to me to make no commercial sense. The essential purpose of the security arrangements and the prohibition of unauthorised photography were to impose an obligation of confidence in respect of any pictures of the wedding. Only in that way could the commercial interests of OK! be protected. And it was clear to everyone … that this obligation was imposed for the benefit of OK! as well as the Douglases. As the Court of Appeal put it when stating OK's argument, ( QB 125 at paragraph 138) 'the photographs published by Hello! fell within a generic class of commercially confidential information ... which OK! were entitled to protect'.
124. Is there any reason of public policy why the law of confidence should not protect information of this form and subject-matter? There is in my opinion no question of creating an 'image right' or any other unorthodox form of intellectual property. The information in this case was capable of being protected, not because it concerned the Douglases' image any more than because it concerned their private life, but simply because it was information of commercial value over which the Douglases had sufficient control to enable them to impose an obligation of confidence" (emphasis added).
- Baroness Hale of Richmond drew attention to the differences between commercially confidential information and intellectual property as follows at paragraph 307:-
" … Spycatcher expanded liability for failing to keep a secret beyond the person to whom it had originally been confided to the person who knowingly took advantage of the secret. There are some secrets which the law will not protect. They may be so trivial or useless that the law should not concern itself with them. There may be a public interest in disclosure greater than the private interest in secrecy. But we have not been given any principled reason why photographic images of this wedding should not be protected. They were undoubtedly a secret unless and until OK! chose to publish the images authorised by the Douglases. Hello! did its best to break what it knew was a secret. There may not have been an entirely identical case before but it is consistent with existing principles to apply them to this case, as the judge did. I confess to having some difficulty in understanding what this has to do with the law of intellectual property. Parliament has devised ways in which an author, inventor or creator can continue to profit from his creativity long after the product has passed into the public domain. Although in both cases the subject-matter can be called information, one set of remedies is about rewarding its creator, the other about keeping it quiet. Parliament has intervened in the former but not the latter" (emphasis added).
- Lord Brown of Eaton-under-Heywood then identified the important aspects of commercially confidential information at paragraph 326:-
"What is the information to which the confidence here attached? Plainly the information as to how the wedding looked – the photographic images which bring the event to life and make the viewer a virtual spectator at it. How can one doubt that this was commercially confidential information or, if one prefers, a trade secret? It was, after all, secret information for which OK! had been prepared to pay £1 million, in the expectation, obviously, that it was to remain secret until they chose to make use of it. And that is certainly how it would also have been perceived by Hello! (who had themselves hoped to acquire and exploit the secret in the same way)".
- Lord Walker said this at paragraphs 275-276 of his dissenting speech regarding what Professor Finn has termed the "sterile debate" about whether confidential information is properly to be regarded as property:-
"275. … I start with some sympathy for what I take to be Sedley LJ's instinctive feeling that it is not obvious why a claimant should be able to invoke the law's protection for the confidentiality of his or her private life (this claim being based on the high principle of respect for human autonomy and dignity) and also to invoke its protection for the commercial confidentiality of the same or similar material, as a trade secret, until it is to be disclosed for profit at a time of his or her own choosing.
276. In order to investigate that problem it is necessary to enquire more closely into what is happening, in legal terms, when a court makes an order for the protection of confidential information. If the person disclosing the information is in contractual relations with the claimant, the most natural claim will be for breach of an express or implied term in the contract. That was the basis for the decision in Pollard v Photographic Co (1888) 40 Ch D 345 (the case of the commercial photographer who was commissioned to take photographs of the Pollard family, and started selling prints of Mrs Pollard as a Christmas card). Where there is no contractual tie the cause of action is the equitable jurisdiction to restrain (or if it cannot be restrained, to award compensation or an account of profits for) breach of confidence. This jurisdiction does not depend on treating confidential information as property, although it is often referred to, loosely or metaphorically, in those terms. Professor Finn (as he then was) has written (Fiduciary Obligations (1977) paragraph 293): 'Perhaps the most sterile of the debates which have arisen around the subject of information received in confidence is whether or not such information should be classified as property.' …" (emphasis added).
- In Tchenguiz v. Imerman supra, Lord Neuberger MR gave the judgment of the court in deciding that a wife in ancillary relief proceedings should return confidential financial documents unlawfully extracted from her husband's computer. He said this about confidential information at paragraphs 68-69:-
"68. If confidence applies to a Defendant who adventitiously, but without authorisation, obtains information in respect of which he must have appreciated that the Claimant had an expectation of privacy, it must, a fortiori, extend to a Defendant who intentionally, and without authorisation, takes steps to obtain such information. It would seem to us to follow that intentionally obtaining such information, secretly and knowing that the Claimant reasonably expects it to be private, is itself a breach of confidence. The notion that looking at documents which one knows to be confidential is itself capable of constituting an actionable wrong (albeit perhaps only in equity) is also consistent with the decision of the Strasbourg court that monitoring private telephone calls can infringe the art 8 rights of the caller: see Copland v United Kingdom (2007) 25 BHRC 216, (2007) 45 EHRR 37.
69. In our view, it would be a breach of confidence for a Defendant, without the authority of the Claimant, to examine, or to make, retain, or supply copies to a third party of, a document whose contents are, and were (or ought to have been) appreciated by the Defendant to be, confidential to the Claimant. It is of the essence of the Claimant's right to confidentiality that he can choose whether, and, if so, to whom and in what circumstances and on what terms, to reveal the information which has the protection of the confidence. It seems to us, as a matter of principle, that, again in the absence of any defence on the particular facts, a Claimant who establishes a right of confidence in certain information contained in a document should be able to restrain any threat by an unauthorised Defendant to look at, copy, distribute any copies of, or to communicate, or utilise the contents of the document (or any copy), and also be able to enforce the return (or destruction) of any such document or copy. Without the court having the power to grant such relief, the information will, through the unauthorised act of the Defendant, either lose its confidential character, or will at least be at risk of doing so. The Claimant should not be at risk, through the unauthorised act of the Defendant, of having the confidentiality of the information lost, or even potentially lost" (emphasis added).
- Against the background of these important cases, Mr Reed supported his construction of section 72, in his reply submissions, by reference to 25 statutory definitions of "intellectual property" in a great diversity of contexts ranging from the Atomic Energy Authority Act 1986 to the National Heritage Act 1983. Though most of the statutes, orders and regulations to which Mr Reed referred post-dated the Senior Courts Act 1981, he asked me to assume that there were similar pre-existing statutory definitions. I doubt there were as many older definitions of "intellectual property" as Mr Reed suggested, but Ms Marzec did not contest his reliance on the succeeding definitions, and I have not myself researched the point. Mr Reed demonstrated by reference to these other pieces of legislation that Parliament has included various types of commercial information in its numerous disparate definitions of "intellectual property", including "commercial information" itself in 5 definitions, "technical information" in 4 definitions, "industrial information" in 3 definitions, and expressions like "scientific information", "know-how", "information of other economic value", "any idea not otherwise protected", "trade secrets" and "confidential information" in one or more statutory definitions. I have scheduled the sections to which he referred to this judgment, since it does not seem to me that the precise form of each is directly relevant to my decision. Mr Reed did, however, point out that some tax and other statutes went so far as including two or more differing definitions of "intellectual property" in one enactment.
- Finally, in this connection, Mr Reed pointed to Part XII of Bennion on Statutory Construction, 5th edition, 2008, relating to "Rules of Construction Laid Down by Statute". Bennion refers to 5 types of definition, including a clarifying definition, which he takes to mean a definition intended to clarify the meaning of a common word or phrase by stating that it "does or does not include specified matters". Bennion also uses the term "potency" to describe the common, dictionary, or even the legal, meaning of the word defined, which he says is "likely to exercise some influence over the way the definition will be understood by the court". Interestingly, Bennion uses section 72(5)'s definition of "intellectual property" as an example of a clarifying definition, opining that "the purpose of a clarifying definition is to avoid doubt as to whether the term does or does not include specified matters", and "A term may have a fairly certain meaning, yet give rise to uneasiness by the drafter about leaving it to stand alone. A common remedy is to specify the main ingredients, and rely for any others on the potency of the term defined. This greatly reduces the danger area. The form is "T means A, B, C, or D or any other manifestation of T", giving section 72(5) as the example. Thus, concludes Mr Reed, "commercial information" must have been intended to expand the definition of intellectual property, and not to be restricted, in the way Ms Marzec contends, to more traditional forms of intellectual property or just to commercial information that would properly be regarded, in law, as amounting to "property" or "intellectual property".
Discussion as to the proper construction of section 72(5)
- As I have said, I accept that the definition of "intellectual property" must be strictly and purposively construed. That does not, however, in my judgment mean that the words "commercial information" must be construed as having no or no significant meaning at all. Ms Marzec's submissions were based on the proposition that the potency or commonly understood meaning of "intellectual property" did not include commercially confidential information, so that, as Lord Lowry suggested in Istel, the words "commercial information" must be construed ejusdem generis as contemplating: "information of the same type (ejusdem generis) as the other examples of intellectual property which are listed in sub-s (5)".
- As it seems to me, the following factors are particularly important in arriving at the correct construction of the term "commercial information" in section 72(5):-
i) Parliament has, at least on occasions, included commercial and other types of information as being comprised within the wider meaning of "intellectual property".
ii) It is generally accepted that most kinds of confidential information and commercial information are not properly regarded as "property" at all, even though they may exhibit some attributes usually associated with property.
iii) Confidential commercial information is certainly not any form of statutorily created intellectual property akin to a patent, copyright, trade mark, design right or registered design.
- Against these aspects of the legal background, I take the view that Parliament must be taken to have been deliberately expanding the meaning of "intellectual property" when it included the words "technical and commercial information" in the string of meanings alongside patent, trade mark, copyright, and registered design (and the later added "design rights" in 1988). As Lady Hale put the matter disarmingly in the Hello! case: "I confess to having some difficulty in understanding what this has to do with the law of intellectual property". The law of confidential information is a particular and developing area. It is sometimes convenient to regard actions brought to protect commercially confidential information, know-how, trade secrets and the like as intellectual property claims. That does not mean they will be regarded as such for all purposes. Nor does it make it helpful to try to over-analyse the similarities and differences between confidential information and a species of traditional intellectual property like patents or copyrights, however academically interesting that exercise may be. Technical and commercial information will not always be regarded as being "intellectual property", nor will actions brought to vindicate such rights always be regarded as "proceedings for infringement of rights pertaining to any intellectual property". But when Parliament has said expressly that "technical and commercial information" should be regarded as a species of "intellectual property" for the purpose of the partial abrogation of the privilege, it seems to me that the courts should not construe the term almost completely out of existence. I note, in particular, the difficulty which Ms Marzec had in defining precisely what kinds of commercial information should be included as a species of intellectual property. In the end, she alighted on an artificial limitation, suggesting that it might include telephone messages describing an innovative design, or including words drafted creatively for a football article in a newspaper. A review of intellectual property textbooks shows that there is no universal definition of the term, which is no doubt why Parliament has adopted a variety of definitions for differing situations.
- I turn then to deal with the aspect of the construction exercise that I have found most difficult, and that concerns the dictum of Lord Lowry in Istel that I understand was not even cited to Mann J in the Phillips case. Lord Lowry's decision (albeit obiter) to the effect that the action for fraud and breach of trust in that case was not "concerned with the infringement of any rights pertaining to intellectual property" was, if I may say so, obviously correct. But his suggestion that the ejusdem generis rule applied so as to mean that the "'commercial information' which the definition contemplates" must be information of the same type (ejusdem generis) as the other examples of intellectual property which are listed in sub-s (5)" seems to me to be incorrect. Technical or commercial information cannot naturally be regarded as of the same genus as patents, copyrights or trademarks. Moreover, Lord Campbell's classic statement of the ejusdem generis principle in R v. Edmundson (1859) 28 LJMC 213 at 215 to the effect that " … where there are general words following particular and specific words, the general words must be confined to the things of the same kind as those specified", would only apply to limit the meaning of the words "or other intellectual property", not the words "technical or commercial information". It is true that Bennion defines the principle more widely so as to provide that "wide words associated in the text with more limited words are to be taken to be restricted by implication to matters of the same limited character", but he also, it must be remembered, used section 72 as an example of a clarifying definition, suggesting that the draftsman would have wanted to expand, rather than limit, the meaning of "intellectual property" in the section. Finally in this connection, Bennion also considers that for the ejusdem generis principle to apply at all, it must be possible to formulate the genus, and that it will not apply at all if no genus can be found. Thus, if "technical or commercial information" is properly to be regarded as of a different genus from a "patent, trade mark, copyright, design rights [and] registered design", there would be no room for the application of the ejusdem generis doctrine.
- In considering the proper construction of the words "technical or commercial information", I have, of course, considered carefully Mann J's decision in the Phillips case. His view was that the telephone messages in that case were "not necessarily information which one could easily sell, or which has the same obviously confidential and commercial quality as, say, a customer list, or a description of a secret process", but that the term "commercial information" was a broad expression that was not confined to such things. He concluded by saying that "[i]t has to be information which relates to commerce (or business) and within that context to have a confidential quality (so as to be properly described as "intellectual property")". Mann J probably regarded "commercial information" as a species of "intellectual property" because he had not had the benefit of any citation of authority. Having seen a great deal of authority on the point, it seems to me that the better view is that "technical or commercial information", whilst perhaps displaying some of the attributes of property and intellectual property, is not properly to be regarded as a species of either.
- More importantly, however, I think Mr Reed was right to say that the species of "technical or commercial information" to which section 72(5) is referring is limited to "protectable" technical or commercial information, or, put another way, to technical or commercial information that can be protected by action. This qualification arises because the types of "intellectual property" are only being defined in order to identify which kinds of proceedings are covered by the section, and in particular which kinds of proceedings are to be regarded as "proceedings for infringement of rights pertaining to any intellectual property". Plainly only "technical or commercial information" that is confidential and can be protected by an action for breach of confidence or breach of contract or breach of another duty can be covered by section 72.
- In reaching these conclusions, I have not ignored the fact that section 72 is a derogation from article 6, nor that it was introduced specifically to tackle video piracy. In my judgment, however, Parliament must be taken to have intended the words it used to have a real meaning. I have little doubt that what Parliament was concerned to achieve was to remove the privilege where the action was a claim to protect commercially confidential information, as much as where it was in respect of the infringement of the traditional kinds of intellectual property.
- In the course of early argument on this point, counsel engaged in an interesting debate as to when private information crossed the line into becoming commercial information. For example, it was suggested that secret knowledge that a famous actress had cancer might be regarded as commercial information in some contexts, since it would have a value to the tabloid press. Likewise, a distinction was suggested between purely private business information (like, for example, a person's instruction to a broker to sell some privately held shares), and business information that might have a commercial value (like the details of the negotiation of an appearance or performance fee). In the end, however, I have concluded that these distinctions are not central to the issues in this particular case, mainly because of the facts contained in the statements of the Claimants, which I shall consider shortly. If, as I have held, any technical or commercial information that can be protected by action is covered by section 72, then the question of to whom the information may have a discrete value will not normally arise. It could arise if, taking one of the examples I mentioned above, a famous actress maintained that the information about her cancer was confidential commercial information rather than confidential private information. That is not this case, and I shall, therefore, say nothing more about it.
- To summarise, therefore, I do not accept Ms Marzec's suggested limitation on the meaning of "technical or commercial information". If the information needed also to be a species of intellectual property, it would be very narrow indeed, and there is no limitation of that kind implied from the words of the legislation. Rather, I take the view that the "technical or commercial information" with which section 72(5) is concerned is any such information that can be protected as such by action.
- Before leaving the legal questions that have been raised, I should mention that Mr Reed originally sought to argue in the alternative that confidential private information was included within the term "or other intellectual property" in section 72(5), so that the question of whether the voicemail messages included commercial information did not matter. As the argument developed, however, Mr Reed placed less and less emphasis on this argument, ultimately realising, I think, that the authorities he himself had cited demonstrated that the point was probably wrong. Since confidential commercial information would not automatically be regarded as a species of intellectual property without a definition to that effect, confidential private information would not either. It would, in my judgment, be stretching the statutory definition far too widely to hold that it included confidential private information even where such information could be protected by action.
Did the Claimants' voicemail messages contain "commercial information"?
- I can now turn to deal with this central question, namely whether on the evidence that has now been filed, there is reason to suppose that the Claimants' voicemail messages contained or included "commercial information" so that section 72 is applicable, because these are "proceedings for infringement of rights pertaining to any intellectual property". Both Defendants have argued that there is no evidence that any telephone messages were intercepted at all. I shall consider that submission in relation to the applications for permission to amend. For this purpose I shall assume that the action concerns the interception of messages, and confine myself to a consideration of whether section 72, therefore, applies to it.
- It is worth noting first that the Claimants cannot be blamed for being unable to identify precisely what messages were intercepted. They allege a covert operation by Mr Mulcaire and NGN to intercept and listen to messages over a period of some 19 months, commencing some 6 years ago. The Defendants have been decidedly uncooperative in assisting the Claimants to identify whether, and if so what, messages were intercepted, and the Claimants have been reliant on limited information emanating from the Metropolitan Police. It is, therefore, somewhat unmeritorious, to say the least, for Mr Mulcaire to contend that the Claimants have failed to establish that they allege that their commercial, as opposed to their private, information was intercepted.
- In any event, it seems to me quite clear from the statements of Mr Gray and Mr Coogan, to which I have referred above, that the kinds of information that is likely to have been contained in both their voicemail boxes included, in each case, some confidential commercial information that could have been protected by an action for breach of confidence.
- Mr Gray has given examples of some of the voicemail messages he thinks he may have received in 2005 and 2006 concerning confidential football news. He mentions specifically, for example, the resignation of a Premiership club manager, and the transfer of an international player from a top European club to a Premiership team, both during the 2005/6 season. Such information has a discernable value, in that the press would be likely to pay for it, and Mr Gray seems to acquire it as part of his professional role as a paid football commentator. These examples are, in my judgment, confidential commercial information that could be protected by action. In addition, Mr Gray gives numerous other examples of confidential commercial information concerning football and his own career that fall within the same category. Whilst Mr Gray undoubtedly brings these proceedings in respect of both private and commercially confidential information, the action is brought in significant part for the infringement of Mr Gray's rights pertaining to commercial information.
- Mr Coogan's case is perhaps even more straightforward in this regard, because he says that 70% of his voicemails concern his professional life as an actor, writer, producer and as a director of Baby Cow. He gives examples of the messages he received concerning confidential commercial negotiations for his own services and for the services offered by Baby Cow. Such information is obviously commercial information within the meaning of section 72 that could be protected by an action for breach of confidence.
Should the court make interim declarations?
- In the above circumstances, it seems to me that these actions are covered by section 72, and that Mr Mulcaire is not, therefore, excused by the PSI from answering any question put to him in these proceedings or from complying with any orders made in these proceedings under section 72(1). I shall, therefore, make interim declarations to that effect.
- It follows that the parts in Mr Mulcaire's defence that seek expressly to rely upon the PSI should be struck out, and that Mr Mulcaire should be given the opportunity to re-serve his defences with those parts deleted, making any appropriate consequential amendments he thinks appropriate.
Issue 2: Whether the Claimants should be permitted to amend their Particulars of Claim to allege that Mr Mulcaire intercepted the Claimants' telephone voicemail messages specifically comprising or including what is pleaded as "commercial information"?
- As appears from the chronology that I have set out above, the Claimants made their applications to amend their Particulars of Claim in response to Mr Mulcaire's opposition to their claims for a declaration that section 72 preventing him relying on the PSI. The Claimants wish to amend to make it clear expressly that the action was for infringement of their rights in the confidential commercial information contained in their allegedly intercepted voicemail messages.
- Both Defendants oppose the application for permission to amend (although NGN only opposes the amendment to paragraph 31 alleging misuse of commercial information) on three main grounds: first, they contend that there is no evidence at all that any of either Claimant's telephone messages was intercepted, and secondly that, even if such evidence does exist, the Claimants have no real prospect of proving that the Defendants misused or threatened to misuse the information in the messages, and thirdly that the amendments are unnecessary.
- It was pointed out in argument that, if the opposition to the amendment application succeeded, at least on the first two of these three grounds, it would be equivalent to a finding that the actions could not succeed. The applications, therefore, raised by a side door a strike out or claim for summary judgment. The Defendants' counsel rejected this suggestion, although they did accept that they were considering making full applications to strike out the claims. I have treated these applications to amend on their merits, but I have been conscious of the ramifications of the findings that I shall be making.
- Both Defendants also objected to the pleading in paragraph 8.4 of the draft amended Particulars of Claim, relying on the examples of commercial information left on the Claimants' voicemails contained in the Claimants' respective witness statements dated 25th January 2011. They submitted that this was an inappropriate way of pleading material facts.
- All counsel agreed as to the relevant provisions of the CPR and the test that I should apply in dealing with an application to amend.
- The application to amend a statement of case is made under CPR part 17.2 which requires the consent of all other parties or the permission of the court. The notes at paragraph 17.3.6 show that the amendment must be supported by evidence and must be arguable, so that the test is the same as that under Part 24 in relation to summary judgment, which provides that the claimant must show that he has a real prospect of success on the claim or issue or that there is some other compelling reason why the case or issue should be disposed of at a trial. Mr Hudson drew my attention specifically to the notes in paragraph 24.2.3 of the CPR to the effect that the inclusion of the word "real" means that the court will disregard prospects that are false, fanciful or imaginary, and that the claimant must have a case that is better than merely arguable.
- In addition, Mr Hudson cited a dictum of Mr Peter Prescott QC sitting as a deputy judge of the High Court in Fraser v. Oystertec plc 3rd November 2009 at paragraph 38:-
"This does not mean that a party can successfully resist summary judgement by suggesting, like Mr Micawber, that something may turn up to save him, though he does not know what: see per Megarry V-C in Lady Anne Tennant v. Associated Newspapers Group Ltd  FSR 298: per Jacob J in World Wide Fund for Nature v. World Wrestling Federation  FSR 504, 515 ("There must be some reasonable basis... It is not enough that something might turn up out of the blue"). The court must be able to see that the prospect is real, not fanciful. For example, "the hope that something may turn up during the cross-examination of a witness at the trial does not suffice. It is of course different if the admissible material available discloses a reasonable prima facie case which the other party will have to answer at the trial" (per Lord Hobhouse in the Three Rivers case)".
- Against this background, Ms Marzec argued that there were five categories of evidence of interception to be considered in Mr Gray's case:-
i) The redacted documents disclosed by the Metropolitan Police that I have summarised above.
ii) The evidence in Mr Gray's statement concerning strange activities on his mobile telephone voicemail system.
iii) The phone records disclosed by the Metropolitan Police.
iv) The negative inference upon which Mr Reed relied arising from Mr Mulcaire's taking the privilege.
v) The fact that Mr Mulcaire has admitted intercepting other people's voicemail messages in the criminal proceedings.
- Of these 5 categories, only numbers (ii), (iv) and (v) apply mutatis mutandis to Mr Coogan's case. And in Mr Coogan's case, there was also the letter from the Metropolitan Police dated 25th May 2010 saying that "there is no documentation in our possession to indicate that your client's voicemail messages were unlawfully intercepted". Disclosure of the documents to be provided by the Metropolitan Police should have taken place on 23rd February 2011. Despite that, I declined to adjourn this hearing until the disclosure was available at Mr Mulcaire's behest. It seemed to me that the applications had been made (and some of them already adjourned more than once) and needed to be dealt with, not least so that the legal issues could be considered by the Court of Appeal (if permission is given) in the window already allotted to the Phillips case.
- The main point argued in Mr Gray's case was that none of the 12 calls known to have actually been made from Mr Mulcaire's landlines to Mr Gray's voicemail box number was long enough to allow interception of Mr Gray's voicemail messages. The Defendants relied in this regard on the evidence that was before Gross J that it normally takes 9 seconds to access any real messages when a call is made to a voicemail direct dial number.
- I have carefully considered this and the other points made on behalf of the Defendants, but it seems to me that, in Mr Gray's case, there is abundant evidence that Mr Gray's voicemails were intercepted, and a strong inference that some misuse will have been made of the confidential information thereby obtained. The 12 calls that have already been proved may well not be the whole story. And at least 3 of them were long enough for some information to have been obtained, even on the evidence before Gross J (of which I have only very limited details). Mr Mulcaire could have telephoned from any landline, not only his own, and the Police have still not disclosed all his landlines for the entirety of the relevant period. There is likely to be more information from the Metropolitan Police in both cases, now that a new impetus has been given to their investigation. A detective has already been in touch with Mr Gray offering access to more documentation. In addition, NGN's disclosure is at the moment somewhat exiguous. I have no evidence as to whether there are justifiable reasons for that, but NGN has, as yet, disclosed none of its telephone records or electronic documents, which might be expected to show whether its journalists were making use of intercepted information emanating via Mr Mulcaire, from Mr Gray's voicemails. Moreover, the documents from Mr Mulcaire's own handwritten notes are more than enough to satisfy me that interception of Mr Gray's voicemails was something that Mr Mulcaire was undertaking regularly. For how long, from where, how frequently and with what consequences are matters for a trial. I asked Mr Hudson what possible other inferences could be drawn from the fact that Mr Mulcaire set up the procedures and obtained the necessary numbers to intercept Mr Gray's messages, other than that he did so. I note also that the date on one of Mr Mulcaire's handwritten notes is 22nd April 2005, which is not coincident with any of the telephone records that the Metropolitan Police have, thus far, disclosed. That indicates that the telephone records already disclosed may not be as complete as the Defendants would like to suggest.
- Mr Hudson then argued that there was nothing to connect NGN to the interception, but since Mr Mulcaire was contracted to NGN, I disagree. Moreover, Mr Mulcaire's own notes and the reference to "Greg" therein supports that case, even though it remains to be proved that "Greg" was Greg Miskiw, a NotW journalist. Contrary to the Defendants' submissions, I do not accept that the claim that commercial information, as I have defined it, was intercepted is less than strongly arguable, nor do I accept that the amendment depends on something turning up. Mr Mulcaire clearly intercepted Mr Gray's voicemail. What information he obtained and on how many occasions will be a matter for trial.
- Mr Coogan's case is obviously less well developed at this stage, since, as I have mentioned, he does not yet have any disclosure from the Metropolitan Police. In addition, he has received the letter of 25th May 2010 saying that there is no documentation in the Police's possession to indicate that Mr Coogan's voicemail messages were unlawfully intercepted. It is hard to square this statement with the other statements in the letter indicating that Mr Mulcaire had all the necessary numbers to allow him to intercept Mr Coogan's voicemail. It seems to me that, just as in Mr Gray's case, it is a fair inference from the fact that Mr Mulcaire had the wherewithal to intercept Mr Coogan's telephone that he is likely to have done so. Why else would he have gone to the trouble of (presumably unlawfully) accessing the necessary numbers? I also place significant reliance in Mr Coogan's case on Mr Coogan's own evidence of the suspicious activities on his mobile telephone account, and the strange incidents in relation to lost voicemails and unusual calls. Again, it seems to me on the evidence before me that there is a properly arguable case that Mr Coogan's confidential commercial information was intercepted by the Defendants. Precisely how good that case turns out to be must await a trial.
- Before concluding this part of the case, I should say that I accept the Defendants' submission that the Claimants' proposed amendments are probably not strictly necessary. The actions plainly relate to both Claimants' private and commercial information. Indeed the articles relied on in the NotW as showing that NGN had the necessary motive to intercept the Claimants' messages were all about the Claimants' private rather than their commercial lives. Provided, however, that the amendments pass the test laid down in Part 24, which I am satisfied they do, the fact that they may not be strictly necessary to defeat Mr Mulcaire's reliance on the PSI – or indeed for any other purpose – does not seem to me to matter. A claimant is entitled to plead his case in any way that he properly can and to amend in any way that is properly supported by the evidence. In my judgment, the amendments proposed by the Claimants fall into this category, save insofar as they seek to plead by reference to the Claimants' witness statements. These statements are 8 and 11 pages respectively and contain much information which could not, on any analysis be regarded as appropriate to plead as relating to the kinds of commercial information ordinarily left on the Claimants' voicemails.
- In the circumstances, I intend to give the Claimant's permission to amend their respective Particulars of Claim, save that each Claimant must first serve a further draft of their proposed amended Particulars of Claim within 21 days, replacing the reference to the witness statements, with a proper pleading of the relevant information extracted from those statements. The Defendants will have 14 days after service of the amended draft to object to the revised draft particulars. If necessary (which I hope and expect it will not be), I will resolve any disputes in this regard on paper.
Issue 3: Whether Mr Mulcaire should be required to give certain further information under Part 18 CPR in relation his alleged telephone voicemail interception activities in relation to persons other than the Claimants?
- There are 3 relevant RFIs that are in issue in this part of the case. They are dated 10th September and 19th November 2010 respectively in Mr Gray's case. The RFI in Mr Coogan's case is in substantially the same form as the first request in Mr Gray's case and is dated 6th December 2010. Mr Mulcaire has objected to answering the bulk of the Part 18 requests on various grounds. It is unnecessary to set out the details of the requests and of those answers that have hitherto been given, since the parties have identified four discrete issues that arise in relation to them. It is common ground that the answer to the PSI question that I have given will mean that several of the requests that have not yet been answered, must now be answered. I shall say no more about those requests in respect of which I will make an order requiring compliance, subject to any request for a stay pending the likely appeal.
- The four discrete issues are as follows:-
i) Whether a series of RFIs (numbered 1-6 and 10-11 in the first RFI in each case) concerning (a) whether Mr Mulcaire's interception of the Royal victims and other admitted victims was at the instruction of NGN; and (b) whether information from these interceptions was passed to NGN, are relevant and should be answered?
ii) Whether the RFIs numbered 12 in the first RFI in each case, asking whether, on Mr Mulcaire's case, there were no other victims other than those named in the indictment in the criminal proceedings, and if not, whether the non-Royal victims named in the indictment were not a representative cross-section of that larger pool of victims, are relevant and should be answered?
iii) Whether a series of RFIs (numbered 4-6 in Mr Gray's second RFI) concerning the method which Mr Mulcaire used to obtain Mr Gray's numbers and passwords, who provided that information, and when it was obtained?
iv) Whether two RFIs (numbered 8-9 in Mr Gray's second RFI) seeking the identity of 16 redacted names on Mr Mulcaire's target list are relevant and should be provided?
RFIs numbered 1-6 and 10-11 in the first RFI in each case
- Requests 1 to 6 and 10-11 ask Mr Mulcaire to name the persons who instructed him to intercept the voicemails, and the names of the persons to whom he passed the intercepts. Request 1-6 relate to Mr Clifford, Mr Andrew, Mr Taylor, Mr Hughes, and Ms MacPherson. Requests 10 and 11 relate to Ms. Armstrong, who was not named in the indictment, but whose messages Mr Mulcaire has admitted intercepting.
- Mr Mulcaire's case on these RFIs is, in essence, that these requests are not relevant to the real issues in the claim against him, since he has admitted intercepting the voicemails of these other persons. He submits that the information is not reasonably necessary to enable the Claimants to prepare their cases or to understand Mr. Mulcaire's case, that the requests are for evidence, and the information serves only as background and does not establish liability. Even if the questions related to "similar facts", which is not accepted, Mr Mulcaire argues that such evidence might not even be admissible on the basis of the requirements in O'Brien v. Chief Constable  2 AC 534. Those requirements are summarised in the head-note as follows:- "The test of admissibility of similar fact evidence in a civil action was of relevance only, namely that the material to be adduced was potentially probative of an issue in the action; that where that test was met the judge with management of the litigation would then consider whether to admit the evidence, having regard to the overriding objective of achieving a correct result through a trial process that was fair to all parties, and would assess the potential significance of the evidence in the context of the case as a whole, weighing its potential probative value against its capacity both to cause unfair prejudice and to increase disproportionately the length and complexity of the trial; that the judge would not admit the evidence unless satisfied that its probative cogency justified any risk of prejudice and, where it concerned collateral matters, that it would not distract attention from the central issues".
- In response, the Claimants submit that it is obvious that evidence as to the other victims will assist the trial judge to know whether or not Mr. Mulcaire was intercepting their voicemails at the behest of NGN journalists. This is especially pertinent given that NGN pleads that Mr. Mulcaire was contracted to provide "legal and legitimate" services. The Claimants say that it is not certain that Mr Mulcaire will actually provide the information sought in requests 7 to 9 of the RFIs, which relate specifically to who requested Mr. Mulcaire to intercept these Claimants' voicemail, and to whom he passed the information he obtained, because he may not remember. Moreover, NGN may not accept what Mr Mulcaire says about the Claimants, and Mr Mulcaire may well not give evidence at trial, so there is a pressing need for these questions to be answered at this stage.
- In my judgment, these requests are relevant to the case brought by the Claimants. It is alleged against the Defendants that they were intercepting telephone voicemail messages on an industrial scale. It will be important to the Claimants' case to establish the pattern of the Defendants' interception activities. It must be remembered that it is alleged in each case that Mr Mulcaire conspired with NGN to intercept the Claimants' messages. The general practice that Mr Mulcaire adopted in taking instructions from and reporting to NGN journalists in admitted cases will, in my judgment, be relevant to the existence of the conspiracy alleged. We already know that Mr Mulcaire had a target list comprising some 18 names, of which Mr Gray was one. It is possible, if not likely, that the other names may include some of those that are the subject of these requests. If they are, the possibility of establishing a conspiracy to intercept these Claimants' messages and those of the other targets will be advanced.
- The outcome of this application does not seem to me to turn on whether the answers to the questions would be formally admissible as similar fact evidence, since I am satisfied that the answers may well be relevant to the specific claim against the Defendants brought by these Claimants. But even if I were wrong on that, I think the criteria in O'Brien are amply satisfied. The similar fact evidence requested is obviously relevant to these claims for the reasons I have given. The material requested is also potentially probative of the issues of conspiracy raised in the actions. It is not necessary now to decide how any answers obtained can or should be deployed at trial. That will be a question, if there is a dispute, for the trial management or trial judge, who may have to weigh the potential probative value of what is obtained against its capacity to cause unfair prejudice and to increase the complexity or length of the trial.
- For these reasons, I will order that Mr Mulcaire should answer requests 1-6 and 10-11 in each case.
RFIs numbered 12 in the first RFI in each case
- Mr Gray alleges that the non-Royal victims named in the indictment were only a representative cross-section of victims, rather than a comprehensive list. Mr Mulcaire denied in his defence that the non-Royal victims were a representative cross-section of a larger pool of victims. Request 12 asks whether Mr Mulcaire was saying that there were no other victims other than those named in the indictment, or whether he says that there were other non-Royal victims, and the ones named in the indictment were not a representative cross-section of that larger pool of victims.
- Mr Mulcaire says he has answered the question, and there is no reason to require him to say what other criminal activities he may have been involved in, which have nothing to do with this case. The Claimants contend that Mr. Mulcaire's answer is an attempt to avoid the question.
- As it seems to me, this question is simply a fishing expedition aimed at establishing the full extent of Mr Mulcaire's criminal activities. The other questions that Mr Mulcaire will now be required to answer will provide relevant information about other victims, without allowing a wide-ranging enquiry about victims that the Claimants know nothing about. The Metropolitan Police may want to make such enquiries, but they are not reasonably necessary to allow the fair trial of these actions.
RFIs numbered 4-6 in Mr Gray's second request
- These requests ask about how Mr Mulcaire obtained Mr Gray's mobile phone number, direct access voicemail number, unique PIN numbers, account number with Vodafone, and password, who provided that information, and when it was obtained. Ms Marzec says that none of these technical questions is in dispute, nor are they relevant to the matters that are in issue. I disagree. It seems to me that Mr Mulcaire has denied or not admitted the wrong doing alleged, and has been extremely unforthcoming in providing any information about what he was doing with Mr Gray's confidential numbers and how he obtained them. These questions are relevant to the alleged conspiracy of which he is said to have been a part, and they should be answered.
RFIs numbered 8-9 in Mr Gray's second request
- Finally, these requests ask Mr Mulcaire to identify the other 17 names on Mr Mulcaire's target list, and require him to explain how the names were identified and who was involved in that process. For the reasons I have already given in relation to the first issue under this heading, I think the identity of the other targeted names and the people who helped identify those names, and the manner in which it was done, will be relevant to the conspiracy between NGN and Mr Mulcaire that is alleged. It is not, as Ms Marzec submitted, the same as requests 12 in the first RFIs, which are asking for a subjective comparison between the victims named in the indictment and the entirety of the pool of victims. These are specific questions directed at Mr Mulcaire's activity in identifying a list of targets of which Mr Gray was one.
- For the reasons I have given, I shall:-
i) Make interim declarations in both actions to the effect that Mr Mulcaire is not excused by the privilege against self incrimination from answering any question put to him in these proceedings or from complying with any orders made in these proceedings under section 72(1).
ii) Strike out those parts of Mr Mulcaire's defence in each action that seek expressly to rely upon the privilege against self incrimination, and give Mr Mulcaire permission to re-serve his defences with those parts deleted, making any appropriate consequential amendments he thinks appropriate.
iii) Order that Mr Mulcaire provides answers to the Requests for Further Information (save for question 12 in each of the first requests)
- I will hear counsel as to the precise form of the orders, any consequential directions, the question of permission to appeal, and as to costs.
Schedule of statutory definitions of "intellectual property"
i) Section 8(2) of the Atomic Energy Authority Act 1986.
ii) Section 92A(9) of the Building Societies Act 1986.
iii) Section 88(10) of the Clean Neighbourhoods and Environment Act 2005.
iv) Section 861(4) of the Companies Act 2006.
v) Section 712(3) of the Corporation Tax Act 2009.
vi) Sections 129(2) and 29(6) of the Finance Act 2000.
vii) Section 8(3) of the Forestry Act 1967.
viii) Section 9(1A) of the Income and Corporation Taxes Act 1988.
ix) Sections 195(6) and 306(6) and 536(4) of the Income Tax Act 2007.
x) Sections 456(1) and 19(6) of the Income Tax (Earnings and Pensions) Act 2003.
xi) Section 579(2) of the Income Tax (Trading and Other Income) Act 2005.
xii) Section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.
xiii) Sections 33B and 35(3C) of the National Heritage Act 1983.
xiv) Section 72(5) of the Senior Courts Act 1981.
xv) Paragraph 2 of the Personal Accounts Delivery Authority Winding Up Order 2010/911.
xvi) Paragraph 9(6) of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009/1917.
xvii) Paragraph 2 of the Scientific Research Organisation Regulations 2007/3426.
xviii) Paragraph 1(2) of the Education (Qualifications and Curriculum Authority and Qualifications, Curriculum and Assessment Authority for Wales) (Transfer of Property and Designation of Staff) Order 1997/2172.
xix) Paragraph 5 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623.
xx) Paragraph 5 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624.