Phillips v Newsgroup Newspapers Ltd & Ors

There are two applications before me in these proceedings, one seeking third party disclosure from the Commissioner for the Metropolitan Police, and the other seeking joinder of an additional Defendant and immediate disclosure of information from him.

The background to this case is a series of events which have attracted considerable publicity in the media. On 26^th January 2007 Glenn Mulcaire was sentenced to an aggregate of 6 months’ imprisonment in respect of various incidents in which he hacked into the mobile telephone messaging systems of a number of people, including three connected with the royal family, Mr Max Clifford (a publicity specialist) and Mr Gordon Taylor (a well-known personality in the football world). At the same hearing Mr Clive Goodman, the royal correspondent on the News of the World newspaper, was sentenced to four months’ imprisonment in relation to complicity on his part in those activities, though in relation to fewer victims.

After that prosecution, both Mr Taylor and Mr Clifford sued the News of the World for damages and other relief in respect of the activities of Mr Mulcaire. Both actions were settled. Mr Clifford’s action was against Mr Mulcaire and against the First Defendant (Newsgroup Newspapers Limited, “NGN”), which publishes the News of the World. It was said in those proceedings that the News of the World engaged Mr Mulcaire to carry out hacking activities. The stance of the News of the World was that no-one at News of the World other than Mr Goodman was involved in such activities or knew of them.

At the time of the events in question the Claimant in the present proceedings, Ms Nicola Phillips, was employed by MCA (Mr Clifford’s company), to assist him in his work, and she had two mobile phones which she used for both personal and business use. In the course of Mr Clifford’s action, and before it settled, there was an application by Mr Clifford against the Information Commissioner for disclosure of information about those to whom Mr Mulcaire supplied information. The request related to information as to the persons to whom Mr Mulcaire supplied information about voicemail messages “left for the Claimant’s personal assistant (Nicola Phillips)”. Vos J made the order sought on 3^rd February 2010. The settlement of the action came some time after this order. It should be said that Ms Phillips was not actually Mr Clifford’s PA (that was not her function), but this was obviously a reference to her. When this came to her attention she came to believe, for the first time, that her mobile phone had been hacked.

To her eyes this made sense of a document she had seen the previous December when she was asked by another employee of MCA to cast her eyes over (inter alia) a manuscript document to see if any of the telephone numbers on it meant anything to her and to see if she could identify the persons to whom those numbers belonged. The document (which I shall call the Mulcaire list) was a manuscript sheet, apparently seized by the Metropolitan Police in the course of their investigation into Mr Mulcaire (and the phone hacking generally), and which contained Ms Phillips’ name at the top, a partial date “28^th Jan”, a list of 39 complete telephone numbers (some of them duplicated, so there are about 30 unique numbers), and about 10 partial numbers (the first two digits – the rest are obscured). She recognised a significant number of the numbers, including one (appearing four times) belonging to Mr Ian Edmonson, another News of the World employee.

Putting all these facts together, Ms Phillips came to the conclusion that her phones too had been hacked into, and commenced these proceedings. Originally they were started against the News of the World. They sought damages, injunctive relief and other associated relief based on breaches of her rights of confidence and privacy. I shall have to give further details of the nature and structure of the claim when I come to consider the relief sought against Mr Mulcaire. The News of the World has served a Defence.

It is common ground that the Metropolitan Police are in possession of a certain amount of documentation acquired during its investigation of Mr Mulcaire and which it seized from him (and possibly others) in the course of that investigation. The application against the Commissioner is one for disclosure under CPR 31.17. Its width was very significantly reduced during the course of the hearing, more or less when anyone suggested a problem with its width, and as a result of that narrowing its form at the end of the hearing can be summarised as follows. The Metropolitan Police Commissioner is to disclose copies of documents seized by them in their investigation into the phone hacking leading to the two convictions referred to above, where those documents fall into one of the following categories:

The purpose of the disclosure is said to be to demonstrate more clearly that there was hacking into her phone, the extent of it, the period over which it happened and the use to which the hacking was put. The assumption is that the numbers on the Mulcaire list were numbers that he got from the hacking exercise, and the disclosure exercise is intended to follow those numbers through and to see what other numbers Mr Mulcaire got from hacking into the phone system. At the moment the case against Mr Mulcaire exists in the realms of inference. It is known that Mr Mulcaire hacked into Mr Clifford’s phone, and the order made by Vos J (with its preceding application) demonstrates that there was at that stage probably some evidence that Ms Phillips’ phone was a victim as well. Mr Mulcaire’s modus operandi was apparently to hack into voicemail boxes, use any relevant information contained in voice messages there and note, and probably follow up, the telephone number from which the message came. It is said that those numbers would then become the subject of hacking in order to build up a pattern of linked people and information. Since she was an employee of Mr Clifford at the time (she has since left and is now self-employed, working in the same field) it can be inferred that she too would be a target of the sort of exercise conducted by Mr Mulcaire. What Ms Phillips does not yet know is the extent of the exercise so far as it was carried out in relation to, or flowing from, her phone. The information sought would also assist in identifying the person to whom any relevant information was passed, and in particular whether it was provided to NGN (which, interestingly, is “not admitted”, rather than denied in NGN’s defence).

It is said that the documents which are sought from the Commissioner will enable Ms Phillips to establish the extent of her case, and to succeed on it to its proper extent. If it transpires that the trail goes nowhere, then she will have a commensurately weaker case. If it goes some way, she will have a commensurately stronger one. However, she does not know how far it goes, partly because the very activity she complains of is a covert one, the true extent of which will be hidden from the victim. The documents in the hands of the Metropolitan Police will help to fill in those gaps.

CPR 13.17 provides:

NGN and Mr Mulcaire (both represented before me) did not adopt a position on this application. The position of the Commissioner, represented by Mr Edwin Buckett, was that he took a neutral stance overall, but drew my attention to the requirements of the rule, and to certain case law on its application. The case law draws attention to the fact that third party disclosure such as this is not routinely ordered and has to be properly justified in every case. Where an application is made against a body such as the Metropolitan Police, particular attention has to be paid to the potential confidentiality of some of the information, and to the fact that the information will sometimes have emanated from third parties who will not have anticipated that it might pass from the police under an application such as the present. The need to have proper regard to the privacy and confidentiality of those third parties is particularly important, and requires appropriately protective measures. Of particular importance in this respect are Marcel v Commissioner of Police [1992] 1All ER 72, and Frankson Rowe & ors v The Home Office [2003] 1WLR 1952. They demonstrate that confidential information can, if appropriate, be ordered to be disclosed under this jurisdiction.

Those two cases concerned information provided by third parties to the police in the course of investigations. Despite the fact that the providers would have regarded the information as confidential, release to private litigants was ordered. That tension does not exist in the present case – the information sought was not actually provided to the Metropolitan Police by third parties (as opposed to Mr Mulcaire) in circumstances of confidence (or at least it does not seem to be anticipated that the disclosure request will cover any such document). The interests of third parties come in in a different way. The request would, unless appropriately limited, enable Ms Phillips to identify certain phone activities of third parties, and (as originally drafted) would have sought details of their recorded messages on the phones of others. That affects their privacy. Mr Alastair Wilson QC, who appeared for Ms Phillips, proposed amendments designed to protect that privacy. The result (together with other amendments proposed by Mr Buckett and by me) is the application outlined above.

I consider that relief in those terms is relief that I should order under the Rule. The information is information which will support the Claimant’s case or adversely affect the case of NGN (and Mr Mulcaire). It will assist Ms Phillips in establishing the scope of the hacking in terms of the number of occasions on which it was carried out, what happened to the information after hacking, and how long it went on for. It will demonstrate, or is capable of demonstrating, the extent to which she can bring home the hacking to NGN. Without that disclosure she will not have documents which are capable of showing that, not least because the documents, a fortiori, are not in the possession custody or control of Mr Mulcaire (who will be subject to the standard disclosure obligation now that he is a party, which he is) or NGN, and they are the best evidence of what happened short of oral evidence from Mr Mulcaire. I am satisfied that, appropriately limited, disclosure is necessary to dispose fairly of the claim. That fair disclosure may include bringing it to a halt if it appears that there is no further evidence to support it.

Just looking at the nature of the disclosure, it can perhaps be imagined that carrying out the exercise in order to provide the documents could involve a time-consuming paper chase through numerous documents. However, the Commissioner has not sought to resist the application on the basis that it would be unfairly onerous to carry it out. At one stage of the hearing there was a suggestion of such a point, but it was not evidentially backed and Mr Buckett did not pursue it. His main concern was the protection of the privacy of others, and that has been dealt with by the limits on the disclosure and the redaction that will take place in relation to the documents. The redaction will reveal the numerical scope of what Mr Mulcaire did in terms of numbers of numbers called, but will not reveal identities of the owners of the numbers he ascertained or the full numbers (beyond those appearing on the Mulcaire document) or the content of messages. That is, in my view, a fair balance. Mr Wilson did not pursue his application beyond that.

In the circumstances I will make an order in the form outlined above. The detailed wording is already established.

Mr Mulcaire was not originally joined as a Defendant in this action but the Claimant seeks to join him now. That joinder is not resisted by him, but he has reserved the right to say that the amended particulars of claim disclose no cause of action against him.

In conjunction with the joinder, Ms Phillips seeks to obtain information from him in the form of what would once have been called interrogatories. The order sought is that Mr Mulcaire do the following:

Miss Marzec, who appeared for Mr Mulcaire, pointed out that it was not clear whether this application was made pursuant to CPR Part 18 or CPR 31.17, but no time was spent on that. She went straight to her principal objection, which is that Mr Mulcaire would, and was entitled to, refuse to answer those questions because he invoked the privilege against self-incrimination. In the circumstances, she said the order should not be made. The main debate centred around that, but Miss Marzec also took the point that Ms Phillips was inadmissibly using the disclosure procedure to fish for a case that she could not currently make out, or even properly determine the existence of. I shall take the self-incrimination point first.

Obviously the precise extent of self-incrimination was not set out, because that would have involved answering the questions which Mr Mulcaire is declining to answer. However, the basis of the claim was that Mr Mulcaire has been prosecuted once for phone hacking, in respect of various specified events, and there is a risk of further prosecutions because it is plain that the prosecution had been selective in the hacking incidents that were the subject of the earlier prosecution and there was the real potential for further prosecution. In the face of that Mr Mulcaire was entitled to invoke the privilege.

Mr Wilson’s riposte to this was twofold. First, there was no real risk of any further prosecution; and second, even if there was, the privilege was overridden (to the extent of requiring the questions to be answered) by s72 of the Senior Courts Act 1981.

There was no dispute as to the overall legal principles involved in disallowing the privilege. Miss Marzec took me to certain leading cases.

In Blunt v Park Lane Hotel Limited [1942] 2KB 253 the general rule was set out:

The question for the court is whether the risk of exposure to criminal proceedings is sufficient to give rise to the privilege. The classic statement of the relevant level of risk is in R v Boyes [1861] 1B&S 311 at page 330:

The degree or level of risk was further amplified in Rio Tinto Zinc v Westinghouse Electric Co. [1978] AC547 at page 574:

Roskill LJ added:

Thus considerable latitude is given to the person claiming the privilege and, putting the matter slightly colloquially, he is entitled to the benefit of any doubt.

The scope of the risk, in terms of the sort of use to which the information might be put, was elaborated on in Saunders v United Kingdom ECHR [1996] case no. 43/1994/490/572:

A perhaps extreme example, but an example nonetheless, of the sort of material which a person is entitled to withhold under the privilege appears in Den Norske Bank v Antonatos [1999] QB271 at page 289, where Waller LJ said:

All those cases provide a test or tests against which the material in this case has to be measured. Mr Wilson did not contend otherwise. Mr Wilson worked with those cases and said that on the facts of the present matter there was no real risk of further prosecution. The risk does not, he said, get to the lowest of the low thresholds provided by those cases. Ms Phillips was the employee of Mr Clifford at the time of the hacking. Hacking Mr Clifford has been the subject of one prosecution and cannot realistically be the subject of another. Hacking Ms Phillips’ phone was a form of hacking Mr Clifford, or was so closely related to it that a further charge brought in relation to it would be unlikely in the extreme. Furthermore, a statement by the DPP decreases that likelihood further because it makes clear that offences against those who could have been identified as victims at the time, but which were not the subject of prosecution, would not now be prosecuted. Any further prosecution would, he said, be an abuse.

Miss Marzec says that this analysis is wrong. There remains a risk of prosecution as is demonstrated by the DPP’s statement that Mr Wilson also relies on, and that is demonstrated by the fact that the police are known to be still investigating the matter – that is apparent from the newspapers and from the fact that the police have asked to interview Mr Mulcaire again. Even if the information provided by Mr Mulcaire pursuant to the questions did not itself lead to a prosecution against him in respect of hacking Ms Phillips’ phone, nevertheless it might form part of material relied on by the police in considering whether to prosecute other matters, or might even be material in an actual prosecution in respect of those other matters. She points in particular to the formulation of questions (b) and (d) which refer to “persons connected with Max Clifford”, and which are not confined to Mr Clifford himself, though her point was wider than that. No legal basis was provided by Mr Wilson for his assertion that future prosecutions would be an abuse of process.

Much of this point turns on what the DPP said in his statement. That statement was in evidence before me. It is dated 16^th July 2009 and refers to an urgent examination of CPS material that he had required to be carried out. The relevant parts of that statement read as follows. In what follows I have used paragraph numbers which do not appear in the original. They are added by me for the purposes of this judgment in order to facilitate references to the statement.

The statement starts by referring to the earlier statement indicating that the DPP had asked for a review. It then goes on:

There is then a section of “Background”, referring to the initiation of complaints and the charging of Mr Goodman and Mr Mulcaire. It goes on:

Each side relies on this. For his part, Mr Wilson says that Ms Phillips was a known victim at the time (see the Mulcaire list), and therefore formed part of a pool of hacked people from which the prosecutions were selected. Since she was not selected, offences against her will now not be the subject of prosecution. The case in relation to her will not be reopened (see para. 11) so there will be no prosecution. Her association with Max Clifford, in respect of whom there has been a prosecution, makes it even more unlikely.

Miss Marzec says it is not as easy as that. The DPP’s statement does not lead one to the conclusion that there will be no prosecution in respect of Ms Phillips, and anyway that is not the real question or test. The trial was not of sample counts, with other cases, including hers, being allowed to lie on the books or taken into consideration. The counts charged were merely those which the CPS at the time decided to prosecute. Their view may change. For example, if further enquiries led to the conclusion that there was evidence of much greater criminality, then further charges might be brought. What Mr Mulcaire said in answer to questions in these proceedings might be relevant to that decision and that further prosecution.

I think that Miss Marzec is right about all this. It is plain that any doubt must be resolved in favour of the person claiming privilege. If there were no question of any unprosecuted hacking other than against Ms Phillips, then one might well conclude that a further prosecution in respect of hacking into her alone was unlikely. However, that is far from the position. A cursory study of fairly recent newspaper reports, even appropriately discounted, reveals that the hacking issue has not gone away (although the newspaper focus has highlighted different aspects of it, namely complaints by individuals that they were not informed that they were or might have been victims). The request to interview Mr Mulcaire again demonstrates that the matter might be live; and paragraph 12 of the DPP’s statement demonstrates that further prosecutions have not been ruled out.

Mr Wilson says that the DPP’s statement does effectively rule out a prosecution in relation to hacking into Ms Phillips’ phone. Paragraphs 5 and 6 demonstrate that there was a pool of victims from which charges were chosen, and I am invited to infer from paragraph 10 that there will be no more charges in respect of that pool. Again, I do not think that it is as easy as that. It is not apparent from the statement itself that Ms Phillips was in the pool, and I cannot infer that she was merely from the fact of the existence in police hands of the Mulcaire list. If she had been a victim in respect of whom there was to be no prosecution then she ought to have received a letter from the police under paragraph 7. She apparently did not. In any event, that is not the entire point. It is not unrealistic to suppose that information provided in answer to Ms Phillips’ questions in these proceedings might be used in conjunction with other material to justify or found a prosecution in relation to other incidents. One does not know. Even if it were thought to be unlikely to have any material impact there is still an appreciable risk which cannot be dismissed. In line with the above authorities the doubt has to be resolved in favour of Mr Mulcaire and the risk is not at such a low level that it can be disregarded for the purposes of the tests propounded by those cases.

I therefore conclude that prima facie Mr Mulcaire is entitled to invoke the privilege against self-incrimination.

Mr Wilson’s next answer to that point is to rely on s72 of the Senior Courts Act 1981. So far as material this reads:

Whether that section applies in this case depends on whether these proceedings are “proceedings for infringement of rights pertaining to any intellectual property”, which in turn depends on the definition of “intellectual property” as set out above. In practice, according to Mr Wilson, it depends on whether the information relied on in this case is “commercial information” within the meaning of the section; he does not rely on any other argument for bringing the matter within the section. Miss Marzec disputes that the action is one falling within the section. She says that the claim, when properly analysed, is misuse of private, not commercial, information, and the breach of confidence is alleged to be in respect of unspecified, not commercial, information.

In order to determine this matter it is necessary to look to some of the details of the way in which Ms Phillips’ claim is pleaded. The relevant pleading is in paragraph 8 of her amended Particulars of Claim, of which the relevant parts are as follows:

Paragraph 9 sets out a claim that Ms Phillips had a reasonable expectation of privacy in respect of the fact that a particular person left a voicemail message or that she had left a voicemail message for them, the time and date of the voicemail message, the caller’s telephone number and the contents of that voicemail message. Paragraph 10 goes on to plead:

It will be noted that there is a reference to messages left by Ms Phillips. Those would have to be messages left by her on the phones of others. It is not clear to me how that fits into the essence of the hacking allegation as against her, but that does not affect the issue that I have to decide.

It will also be noted that the pleading in part relates to what is plainly private confidential information. Mr Wilson acknowledges that, and does not rely on that in his case on s72. What he relies on is the sort of material referred to in paragraph 8.5. It is said that while that is not the more familiar sort of confidential commercial information that is the stuff of confidentiality disputes and which will doubtless have been in the forefront of the legislature’s mind, nonetheless it is commercial information. It is information that has commercial value because it is part of the material which Ms Phillips, and others in Mr Clifford’s organisation, eventually knit together in order to perform their functions. It may be a very small part of it, but, to take an example, the mere fact that someone has rung in order to speak to Ms Phillips would be a sensitive piece of information, and information which she (and Mr Clifford) would not necessarily wish to share with anyone else. The case is even clearer where a confidential message is left for the purposes of that business.

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.

Accordingly, to that extent, this is an action to enforce rights pertaining to intellectual property within the meaning of the section. I have not overlooked the fact that the commercial rights in question belong, in the first instance, to Mr Clifford or his organisation. It is not information to which Ms Phillips is entitled in her own right. It is therefore not easy to see how she can claim damages. However, it was information which was in her hands and in respect of which she has an arguable claim to injunctive relief, parallel to Mr Clifford’s. In appropriate circumstances a person entrusted with another’s commercial information can sue to prevent its disclosure.

I also do not overlook the fact that Ms Phillips claims to be protecting the confidentiality of her communications which she has in her own right in her new business. That may be a less certain foundation for the present claim (though I express no final view on it) because it might be said that she was only hacked because she was a Max Clifford employee and information which now comes to her personally is something else. However, it is not necessary to address this point because Mr Wilson has enough to invoke s72 in relation to the historic breaches of confidentiality carried out in relation to the historic information on her phone (on the assumptions which I make for the purposes of this application).

I have adverted to the fact that Mr Wilson relies only on “commercial information” in s72(5). He did not seek to say that confidentiality in private information is within the definition. Albeit uninstructed by the submissions of counsel, I would have thought there would be an argument for saying that the concept of “other intellectual property” might nowadays be thought wide enough to encapsulate that class of information as well, particularly bearing in mind the recent Court of Appeal decision in Veolia ES Nottinghamshire Limited v Nottinghamshire County Council & ors [2010] EWCA Civ1214, which was handed down between the end of argument in my case and the delivery of judgment. That case indicated that for some purposes confidential information could be treated as a possession. However, this is potentially a rather significant point, and since it was not argued at all, I shall say no more about it.

In her skeleton argument Miss Marzec raised the possibility that s72 is potentially incompatible with Article 6 of the European Convention on Human Rights. However, she did not seek to pursue it because she did not think she had to. In the circumstances I have had no argument on that point either. In the absence of argument I do not propose to deal with the point any further.

I therefore conclude that Mr Mulcaire would, absent s72 of the Senior Courts Act 1981, be entitled to invoke the privilege against self-incrimination in relation to the questions which are asked of him. However, since s72 applies to part of the claim, this action is one to which s72 applies and he cannot invoke the privilege. He does of course have the benefit of subsection 3 (which prevents any answer that he gives being admissible in evidence against him should there be any subsequent prosecution).

As her last line of resistance, Miss Marzec submits that her client should not have to answer the questions because the questions are premature and Ms Phillips is fishing for a case that she cannot otherwise make. She criticises Ms Phillips’ case as being “entirely speculative”. I do not think that that is a correct or fair description. It is certainly the case that Ms Phillips’ case is based heavily on inference. She has little to go on apart from public knowledge of the hacking controversy, the fact that her employer was hacked, what passed in the proceedings before Vos J and the Mulcaire list. However, what she is able to construct, or suggest, from that is not some sort of mere speculation which makes her action improper. She is able to draw certain inferences from that which enable her to plead the case (or so it seems to me – I would not wish to be seen to be pre-judging any future strike-out application on which Miss Marzec has reserved her position). In that context, the questions are not fishing for material in order to make a case that she cannot otherwise make. They are, it seems to me, legitimate questions which should be answered in order to have this case determined justly. I repeat the point made above, namely that in a case like this the claimant is very often going to have to rely on inference because the very nature of the alleged wrong is such that he or she would have no direct evidence of it. Having acquired some evidence, there will be some questions in the litigation which can legitimately be asked, and the questions which Ms Phillips seeks to raise of Mr Mulcaire fall into that category.

I therefore reject this criticism of the questions as well.

Since there was no other objection to the questions, I find that the further information sought of Mr Mulcaire is information which the Claimant is entitled to seek, and Mr Mulcaire is not entitled to resist giving it by virtue of the privilege against self-incrimination. I shall therefore order that he answer the questions within a time-frame which can be debated after the handing down of this judgment.