Gray v News Group Newspapers Ltd & Anor

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 1^st 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:-

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.

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”.

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 [2010] 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 14^th 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 15^th 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 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:-

in the case of proceedings within subsection (2)(c), any offence revealed by the facts on which the plaintiff relies in those proceedings;

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. [2008] 1 AC 1, and on the judgment of Lord Neuberger MR in Tchenguiz v. Imerman [2010] 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 [1993] 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:-

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 29^th 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 26^th 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 25^th 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 8^th June 2010. The proceedings allege that:-

The Defendants intercepted and listened to Mr Gray’s messages and kept notes, records and recordings as set out above.

NGN procured and conspired in the acts of interception, intending to use the information for newspaper stories.

NGN and Mr Mulcaire have misused and threatened to misuse Mr Gray’s confidential information and private information.

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.

Mr Gray is entitled to injunctions, damages and exemplary damages.

On 7^th 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 16^th July 2010, Mr Mulcaire served his defence to Mr Gray’s claim (which he later amended on 9^th 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 5^th 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 4^th 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 12^th 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 27^th 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 9^th November 2010, Mr Coogan issued his proceedings making the same claims as in Mr Gray’s case. On 22^nd 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 17^th 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:-

Mr. Mulcaire has now appealed Mann J’s decision, with permission granted by Mann J.

On 19^th November 2010, Mr Gray issued an application notice seeking:-

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.

An order that Mr Mulcaire provide full answers to Requests 1 to 12 of the Claimant’s Part 18 RFI.

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 3^rd 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 6^th 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 19^th 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 14^th 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 17^th 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 24^th January 2006 to 17^th February 2006, and in respect of calls from a landline number ending in the digits “3328” from 1^st December 2005 to 15^th June 2006. These records appear to evidence 12 calls made from Mr Mulcaire’s lines to Mr Gray’s direct dial voicemail between the 7^th February 2006 and 20^th 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 18^th 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 20^th 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 24^th 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 25^th January 2011, Mr Gray and Mr Coogan each made their first statement in these proceedings pursuant to the permission I had granted on 19^th January 2011. Later the same day, Mr Gray’s contract of employment with Sky Sports was terminated.

On 26^th 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 23^rd February 2011.

Also on the 26^th 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 10^th 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 14^th February 2011, the matter came back before me for further argument, which eventually lasted nearly three court days. I was told that on 15^th 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 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:-

Family, friends and associates;

Colleagues;

Footballers;

Football managers;

Football agents;

Football referees;

Other well-known individuals in sport and television;

Personal telephone calls;

Individuals with whom the Claimant is in a relationship; and

Calls relating to medical, financial, legal and business matters.

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.

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.

Mr Gray regularly leaves voicemail messages for the same people who are likely to leave messages for him.

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 .

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.

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.

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.

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 25 ^th January 2011 .

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.

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:-

Paragraphs 4.3 to 4.9 are replaced in Mr Coogan’s claim with references to actors, comedians, television producers, directors, scriptwriters and agents.

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”.

Mr Coogan receives typically 4 or 5 voicemail messages per day with 8 or 9 per day at peak times.

There is no reference to Mr Coogan having a partner.

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:-

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)”.

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 25^th 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:-

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:-

The resignation of a certain Premiership team manager during the 2005/6 season;

The resignation of a certain Championship team manager during the 2005/6 season;

The appointment of a certain manager during the 2005/6 season; and

The transfer of a certain international player from a top European club to a Premiership team during the 2005/6 season.

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:-

sensitive financial information concerning how Baby Cow was performing as a company;

the current status of the various television shows and other projects Baby Cow was working on;

the current status of negotiations regarding the booking of various high profile artists to feature in Baby Cow Productions;

the current status of negotiations regarding the booking of film/TV directors for Baby Cow Productions;

the sums we were prepared to offer such artists/directors and discussion of what our negotiating tactics should be in trying to secure them;

the current status of then negotiations with BBC Worldwide for a stake in Baby Cow and the potential terms of such a deal;

the current status of negotiations to secure funding for Baby Cow projects and likely terms of funding;

Ideas for future potential Baby Cow projects;

Arrangements for the setting up of Baby Cow’s Manchester office such as hiring premises and new staff; and

Miscellaneous important administrative and strategic decisions to be made regarding Baby Cow.

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 [1991] 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) [2003] 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 [1982] 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:-

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 19^th edition, 2006, at paragraph 28-03, the juridical basis of the action for breach of confidence is explained in the following terms:-

Secondly, paragraphs 2-030 to 2-066 of the 2^nd 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 [1967] 2 AC 46, where the majority favoured Lord Upjohn’s view, which he expressed as follows:

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.

In response, Mr Reed cited the Spycatcher case (A-G v Observer Limited [1990] 1 AC 109), the Hello! case and the recent decision of the Court of Appeal in Tchenguiz v. Imerman [2010] 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:-

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:-

Baroness Hale of Richmond drew attention to the differences between commercially confidential information and intellectual property as follows at paragraph 307:-

Lord Brown of Eaton-under-Heywood then identified the important aspects of commercially confidential information at paragraph 326:-

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:-

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:-

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, 5^th 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”.

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):-

Parliament has, at least on occasions, included commercial and other types of information as being comprised within the wider meaning of “intellectual property”.

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.

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.

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.

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.

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 25^th 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 3^rd November 2009 at paragraph 38:-

Against this background, Ms Marzec argued that there were five categories of evidence of interception to be considered in Mr Gray’s case:-

The redacted documents disclosed by the Metropolitan Police that I have summarised above.

The evidence in Mr Gray’s statement concerning strange activities on his mobile telephone voicemail system.

The phone records disclosed by the Metropolitan Police.

The negative inference upon which Mr Reed relied arising from Mr Mulcaire’s taking the privilege.

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 25^th 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 23^rd 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 22^nd 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 25^th 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.

There are 3 relevant RFIs that are in issue in this part of the case. They are dated 10^th September and 19^th 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 6^th 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:-

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?

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?

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?

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?

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 [2005] 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.

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.

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.

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:-

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).

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.

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.

Section 8(2) of the Atomic Energy Authority Act 1986.

Section 92A(9) of the Building Societies Act 1986.

Section 88(10) of the Clean Neighbourhoods and Environment Act 2005.

Section 861(4) of the Companies Act 2006.

Section 712(3) of the Corporation Tax Act 2009.

Sections 129(2) and 29(6) of the Finance Act 2000.

Section 8(3) of the Forestry Act 1967.

Section 9(1A) of the Income and Corporation Taxes Act 1988.

Sections 195(6) and 306(6) and 536(4) of the Income Tax Act 2007.

Sections 456(1) and 19(6) of the Income Tax (Earnings and Pensions) Act 2003.

Section 579(2) of the Income Tax (Trading and Other Income) Act 2005.

Section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985.

Sections 33B and 35(3C) of the National Heritage Act 1983.

Section 72(5) of the Senior Courts Act 1981.

Paragraph 2 of the Personal Accounts Delivery Authority Winding Up Order 2010/911.

Paragraph 9(6) of the Overseas Companies (Execution of Documents and Registration of Charges) Regulations 2009/1917.

Paragraph 2 of the Scientific Research Organisation Regulations 2007/3426.

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.

Paragraph 5 of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623.

Paragraph 5 of the Employment Tribunals Extension of Jurisdiction (Scotland) Order 1994/1624.