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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Various Claimants v News Group Newspapers Ltd [2022] EWHC 891 (Ch) (25 March 2022) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2022/891.html Cite as: [2022] EWHC 891 (Ch) |
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BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
7 Rolls Buildings Fetter Lane, London EC4A 1NL |
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B e f o r e :
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Various Claimants |
Claimants |
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- and - |
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News Group Newspapers Ltd |
Defendant |
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Anthony Hudson QC and Ben Silverstone (instructed by Clifford Chance LLP) for the Defendant
Hearing dates: 24 and 25 March 2022
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Crown Copyright ©
MR JUSTICE FANCOURT:
(1) Preventing the litigation from absorbing an undue share of the court's resources by shortening the period over which the remaining claims are resolved and bringing the managed claims process to an end.
(2) Putting an end to exorbitant costs. If there is a final cut-off date for MTVIL, cases would not be dealt with piecemeal over a prolonged period but would be disposed of "in a focused way and within a confined timescale".
(3) Dealing with cases expeditiously and fairly given the time delay between events of 1996 to 2011 and a trial more than ten years after that period ended. Reference is made to increasing difficulty of finding witnesses and the witnesses remembering events.
(4) Providing clarity about the quantity of remaining cases at an early stage, which gives a comprehensive view of the remaining cases that the defendant faces. It is suggested that giving knowledge to the defendant about the extent of its likely global liability will assist in the settlement of claims.
"There appears to be no good reason why any individual who suspects (s)he may have been a victim of unlawful information gathering between 1996 and 2011 would not by now be aware of his/her claim and could not reasonably be expected to bring a claim by 29 July 2022, the cut-off date proposed by NGN."
"2. By way of preliminary observation I say that cut off dates are essential in GLOs to secure the good case management of the claims falling within its scope. The parties depend upon some level of certainty as to the cut off date in order to decide how to deploy their resources and when. Accordingly extensions of the cut off date should not come to be regarded as the norm.
[…]
6. In order to do justice between the parties, I am, as I have said during the course of argument, minded to extend the cut off date but not to the extent requested. Quite frequently, if cut off dates are applied, they will focus the minds of lead solicitors and have a beneficial result by my incentivising those who are responsible for putting matters together to concentrate their efforts and resources."
"26. In summary, the principle is that cut-off dates secure the good case management of claims and they assist parties in litigating by providing some level of certainty. That assists in deciding how parties deploy their resources. I would add that they also promote potential for settlement by fixing to some extent the "size" of a claim faced by a defendant.
[…]
32. In the context of this case, subject to some qualifications to which I will return, it seems to me as a matter of principle that BA is entitled to know, even if we are only at the liability stage, what the extent is of its potential exposure, if it lost these claims.
33. The reasons why it is entitled to have knowledge of such matters are in some respects obvious. First, it seems to me that any litigant will make its resource allocation decisions depending upon potential exposure. Second, and this is particularly important in the context of these proceedings, the approach that a party in BA's position will take in settlement discussions will also be fundamentally dependent upon the size and extent of a claimant group and potential financial exposures.
34. The qualifications to which I made reference are as follows: even if a cut-off date is imposed, and subject to the issue of limitation, it is right, as explained by counsel for the claimants, that BA does not have ultimate certainty because there may be additional claimants or indeed a further GLO down the line. I accept those points.
35. However, there is a degree of certainty for BA once the group in this litigation is closed, and in my judgment part of the overriding objective is seeking to promote settlement of litigation. The court should ensure that a defendant knows the value and extent of potential claims it is facing, even if there is some continuing uncertainty because of the potential for new claims outside the group in the future. There is certainly a value, and a substantial value, on a defendant having certainty."
"MTVIL is unlike other multiple action litigation. For example, in asbestos claims an individual claimant is aware that they have a potential claim because they know they have come into contact with asbestos at a certain time. Victims of unlawful information-gathering are invariably unaware of the activity at the time and are generally unlikely to become aware of it unless it is brought to their attention in some way. That is the point of the activity, it was meant to be covert or concealed at the time. Similarly, this is unlike multiple claims alleging the mis-selling of insurance, where a claimant knows that they had an insurance policy. This is why the fact that NGN specifically concealed what it was doing from victims at the time of wrongdoing and then sought to conceal it after the event, which forms part of every claimants' response to NGN's limitation plea, is so important. It is therefore extremely difficult for a claimant to know that they have a claim to bring unless they are notified in some way as to, for example, there being a private investigator invoice or there being call data relating to an individual."
"I have to say that Ms Rose's analysis causes one to take a jaundiced view of the disclaimer advanced by Ms Rose. [I interpolate the disclaimer was of any intention to be obstructive to these claims.] What distinguishes the phone hacking cases from most claims is that the victims (claimants) are unlikely to know that they are victims until someone else (the MPS) tells them, and then they cannot know the extent of the apparent wrong unless someone else (again the MPS) tells them. They could not fully plead a case unless that same person provides information but cannot sensibly take a view on compensation levels without that same information. Quite how it can be said that in those circumstances it would be better to start with a thinly pleaded action and wait for discovery is beyond me. It might be better for NGN for victims to be in ignorance for a longer rather than a shorter time, but it can hardly be better for the claimants."
"13. Thus the claimants make claims which are said to fall into three main categories - wrongfully listening to private or confidential information left for or by the claimant, wrongfully obtaining private information via private investigators, and the publication of stories based on that information. MGN admits all those activities (but not the extent of the first two) and accepts that damages are payable as a result, but does not accept that those three "layers" should be treated as separate compensatable matters when it comes to assessing damages. This point will be developed below in considering detailed matters of quantum.
14. For the sake of completeness I should add that there was a fourth possible unlawful technique for getting information, which is blagging by the journalists themselves. That probably happened too, but I do not need to consider that separately.
15. Mr Yentob's case is different from the other claimants in that it does not have one of those layers. While there was evidence of a lot of hacking directed at him, no stories were published about him as a result. It is likely that the information left for and by him was used to investigate other individuals of more interest to the newspapers."
"Not all the information that was obtained from phone hacking was usable for a story. If it was, it would be passed to other journalists who would often not know where the story came from and they would investigate through more legitimate means and if possible write the story. Information that was obtained from hacking would, if published, have its source disguised by attributing the source to a 'friend' or 'pal'. As will appear, this had a particularly caustic effect on the relationships of the victims."
"I accept that there are three areas of wrongful behaviour which need to be looked at separately. First there is the general hacking activity, each of the individuals had their voicemails and some of those whom they rang hacked frequently, in their own cases daily, with most hacks not resulting directly in an article. Their private information was thus acquired and their right to privacy infringed irrespective of whether an article was published. That fact makes it appropriate to take the activity separately and assess its effect in terms of compensation separately from damage arising from publication."
"The fact of hacking could not be revealed by the newspaper in the published article but the ruse was adopted of quoting an unnamed source said to be close to the subject of the article, or an unnamed friend."
"The vast majority of the 472 individuals who have intimated a claim during tranche 4 are associated in some way with other claimants who have brought claims in the MTVIL."
And at paragraph 44:
"Many tranche 4 claimants were private individuals who said that they were of interest to the defendant because of their association with a higher profile individual."
(1) There is a continuous stream of new claims being issued which does not appear to be abating.
(2) The reason for the stream of new cases is accepted to be that new claims arise out of the management and preparation for trial of existing claims. Persons who were not previously involved as claimants have become involved as potential witnesses, or at least as named associates of existing claimants, and by those means or possibly other means, have discovered that they were subjected to phone hacking. That is a process that in my judgment is likely to continue given the very large number of persons who have been identified from the disclosure in this litigation who may, at least in theory, have a claim against the defendant, and the significant number of new cases still being brought which will lead to disclosure of call data and PI payments for their associates.
(3) More claims are now being brought that do not arise from an article published about the claimant. That is a process that may well continue. It is not therefore the case that any claimants must know, because of the article, that they are victims.
(4) Even where the potential claimant did have an article about them published, it is not necessarily obvious from that fact that the information was obtained by unlawful activity. Indeed, as has already been found in the MGN case, that company went to some lengths to conceal the origin of the information and make it appear innocuous. There appears to me to be close similarity between the NGN articles and practices and the MGN articles and practices in that respect.
(5) Suspicious phone activity may or may not cause a potential claimant to think that they might have been a victim of phone hacking. But it cannot automatically be said that because someone knew that there was something odd happening with their mobile phone they might be a victim of hacking, and as a result they have the information needed to know that they can bring a claim. That is especially so at this remove of time, between 11 and 25 years from the events in question. Many potential claimants are ordinary people, who would not imagine that their phones would be hacked, yet they have one or more friends who are in the public eye and of interest to the tabloid press.
(6) For many if not most claimants, it is only the facts established by phone data or PI invoices that make them realise that they have a claim. Knowledge about phone hacking practices generally through media coverage does not equate to realisation that a person was themselves a victim of phone hacking, even if they know or are related to someone who has brought a claim. Although pre-action disclosure is given on request now by the defendant, and by MPS, that only helps a potential claimant if they are aware that they may have a claim. If they are not aware, they will not apply for disclosure.