Andrew v News Group Newspapers Ltd & Anor

This is an application dated 7^th February 2011 by which Mr. Skylet Andrew (whom I shall call "Mr. Andrew") seeks disclosure of unredacted copies of documents disclosed by the Commissioner of Police of the Metropolis ("the Commissioner") pursuant to my order dated 6^th December 2010 and further disclosure beyond the scope of the previous order.

The main, but by no means the only, issues that arise for determination are twofold. First, the relevance of the documents of which unredaction or disclosure is sought and, secondly, whether the Commissioner can properly claim that the documents should be protected from disclosure by public interest immunity. The immunity in question is said to be applicable because the Commissioner fears that disclosure will impede or hamper the current police investigation into phone interception activities undertaken at the News of the World newspaper ("NoTW") between 2005 and 2006.

The Commissioner raised these matters with me in an application he made in private and without notice to the parties to the proceedings on 10^th and 11^th March 2011. Accordingly, I informed the parties at the outset of this hearing in public as follows:

No application was made by any party asking me to recuse myself and I do not think therefore there is any reason why I should not have heard this application. Accordingly, I did so. After initial argument I also ordered at the start of the hearing of this application on 14^th March 2011 that my order, sealing the orders of 4^th March and 10^th March and my judgment of 10^th March should continue until after I had delivered this judgment when the parties can make submissions on the desirability of the continuation of the sealing of those orders.

I should also mention that in the course of the hearing Mr. Jeremy Reed, counsel for Mr Andrew, told me that Mr. Buckett had suggested to him that this application might be adjourned for three months. Mr. Reed said he did not agree to that course but was in the court's hands if I thought it was appropriate.

I should also mention two further matters by way of introduction.

First, and also whilst the hearing was proceeding, I was appointed by the Chancellor of the High Court to undertake the case management and interlocutory hearings of all the pending telephone interception cases. This is important because some issues that have an impact beyond the case brought by Mr. Andrew were raised in the course of argument. I would not have wanted to deal with any such issues in this judgment had I not been appointed to handle these cases for fear of stepping on the toes of the judge who was so appointed. That concern has now been assuaged by my appointment.

Secondly, it should be noted that this application and others like it are made against the Commissioner because he happens to be in possession of sensitive documents that a criminal court ordered to be forfeited by Mr. Mulcaire. In more normal circumstances Mr. Mulcaire would be in possession of such documents. Thus the forfeiture order has had the effect that the Commissioner has been faced with a considerable number of applications under Part 31.17 of the Civil Procedure Rules for non- party disclosure. It must be borne in mind that the Commissioner is running a police force whose task is to investigate crime. It is not his task to put together information for civil claimants in quite separate litigation to which he is not a party and with which he is not concerned. This is important because some of the submissions made by the claimant seem to me to border on saying that the Commissioner could or should be required to work on the documents he held for the benefit of the claimant or to avoid the embarrassment of confidential documents being disclosed to an individual claimant. This was denied by Mr. Reed, counsel for the claimant, who said that his submissions merely amounted to saying that he was entitled to an order for disclosure but that the Commissioner might prefer to perform that order in a way that preserved confidentiality but still gave the claimant what he needed. I will return to deal with the effect of Part 31.17 but I should say at once that I would be most reluctant to make any order that put the Commissioner to additional effort or expense beyond that which was absolutely necessary. I am acutely conscious that his job is to investigate crime and bring offenders to account and that the court should hesitate before making orders that interfere

I would conclude this introduction by saying therefore that I think that there is a

With that introduction, I can now set out the ten categories of documentation of which Mr. Andrew now seeks disclosure. The categories numbered 1.4 and 1.10 are excluded as they are no longer pursued:

The claimant suggests a protocol for redactions in the proviso to the draft order sought as follows:

In addition, the claimant seeks an order that the Commissioner should inform him within seven days whether he has in his possession the following two further categories of documents as follows:

In his submissions, Mr. Buckett informed me on instructions that he could not say whether the Commissioner held any documents falling within paragraph 2.2 of the draft order, but that he did have one page which comprised incoming phone data falling within the provisions of paragraph 2.1 of the draft order. That document had, however, been provided to the Commissioner by a third party on express conditions as to confidentiality.

The categories of documents in paragraph 1 of the draft order break down into the following four categories as follows:

In the course of argument on the first day of the hearing, Mr. Reed expanded his request for disclosure under category 1 (items 1.5, 1.8 and 1.9) from two pages either side of the entry relating to Mr. Andrew to the entirety of the notebooks. As the argument on this point developed, however, it became apparent that the issue raised a completely new question of whether the way the notebooks were compiled and laid out would be likely to provide useful information for the claimant's case and whether there would be any pattern disclosed in them that would bear on the conspiracy allegations made against NGN and Mr. Mulcaire. In the end, Mr. Buckett submitted that he had not had enough notice to deal with the extended application and Mr. Reed accepted that contention and agreed that I should not deal with that application at this stage. It will be open to Mr. Andrew to issue a further application in due course, obviously in the light of this judgment, if he wishes to press for disclosure of the entirety of the notebooks.

I should say one more thing before leaving the question of the entirety of the notebooks. I indicated in argument that I was keen to avoid multiple repetitive applications against the Commissioner that risked impairing his ability to progress his investigation and constituted an avoidable burden upon his staff and resources. In that context I was keen to consider whether immediately before the trial of this action it would look ridiculous that only small extracts from Mr. Mulcaire's notebooks had been sought and obtained from the

This application is made under CPR Part 31.17 which provides as follows:

CPR Part 31.22 protects documents disclosed and information disclosed as follows:

CPR Part 31.19 under which the application was made by the Commissioner to me on 9^th and 10^th March 2011 provides as follows:

Mr. Justice Eady in the case of Barry Flood v. Times Newspapers [2009] EMLR 18 at paragraph 29 said this in relation to Part 31.17 applications:

In the case of Maxwell Frank Clifford v. NGNand Mr. Mulcaire in which I gave judgment on 3^rd February 2010 and in the applications made by Messrs.

The balancing exercise was described by the Court of Appeal in Frankson where the balance was between the confidence that existed in statements made to the police for the purposes of an investigation on the one hand and disclosure necessary to dispose fairly of a civil action against the Home Office in respect of alleged assaults on prisoners on the other hand. Lord Justice Scott Baker said this at paragraph 38:

“The court has in cases such as the present a difficult balancing exercise to perform between the two conflicting public interests. For my part I would not put interviews under caution of suspects into any special category. It seems to me all who make statements to or answer questions by the police do so in the expectation that confidence will be maintained unless (1) they agree to waive it, or (2) it is overridden by some greater public interest. The weigh to be attached to the confidence will vary according to the particular circumstances with which the court is dealing. In the present case the countervailing public interest is one which in my judgment is of very great weight and one which outweighs the desirability of maintaining confidentiality. In conducting the balancing exercise the judge had clearly in mind the need to maintain the confidences so far as it was possible to do so. To that end he imposed stringent conditions on the extent and manner of disclosure. This is in my view a course which should always be followed in similar cases where the court decides that disclosure is required."

It is also at the third stage that I have described that the question of public interest immunity raised by the Commissioner comes into play.

The question of public interest immunity for documents relating to a police investigation is not commonly raised. Indeed, the parties have only been able to find one case directly on point, the Arias case to which I shall come in a moment. Despite that it is a recognised possibility that such an immunity might be available. It is, however, a slightly different kind of category from the more well known categories of public interest immunity like national securityor the workings of central government. Mr. Buckett relies on three categories of public interest immunity described in Hollander on Documentary Evidence 10^th edition 2009 as "Proper functioning of the public service", "the Police" and "Information leading to the detection of crime", but none of these is actually directly in point here.

I do not propose in this judgment to go through the history of the law of public interest immunity following landmark cases such as Conway v. Rimmer [1968] A.C. 910 and the R. v. Chief Constable for the West Midlands Ex parte Wiley [1995] 1 A.C. 274, but I was referred to the chapter on public interest immunity in Hollander including the following useful passages which I cite as briefly as I can.

“18.02

There is a public interest in allowing material to be withheld where its disclosure would harm the nation or the administration of justice. That public interest may clash with the public interest in the administration of justice which requires the disclosure of documents so that trials may be conducted fairly. Public interest immunity is the expression used when the public interest in favour of withholding the documents from disclosure purvey it.

18.13

... a claim made by a government department will usually be supported by a witness statement evidence from the relevant Minister or head of department identifying the documents and the grounds for withholding them in as much detail as possible. In the case of a ministerial objection, a certificate signed by the Minister may suffice. The issue will normally be raised in a criminal trial before the judge in the absence of a jury."

18.15: ... Assuming that the court is satisfied that disclosure would be likely to cause real harm to the public interest, the next step is to conduct the Wiley balance: is the probative value so important to a fair resolution of the issues in the action and the exigencies of the public interest in achieving a fair resolution of the issues in the action to outweigh the risk of harm outlined in the certificate?

Although the ECtHR cases are concerned with claiming public interest immunity in criminal cases, the effect of this jurisprudence is not confined to criminal cases. In criminal cases, the attitude of the courts is clear: even if this is an appropriate case for public interest immunity, what can be done to provide the maximum possible protection for the interests of the other party? In the past, this was rarely an issue in civil cases. The court would generally merely rule as to whether the public interest immunity application was well founded. Now the approach is not merely to consider whether the immunity is well founded but also to assess how the issue can be resolved fairly. For this purpose the court will wish to consider whether the position can be resolved by ordering disclosure on terms which protect the public interest. Disclosure may be limited to solicitors and counsel. Redactions may be permitted."

In Cross and Tapper on Evidence (12^th Edn 2010) at p.488 the following is said about public interest immunity applications to materials held by the police:

In the case of Arias & Ors. -v- Commissioner for the Metropolitan Police & Anor. (1984) SJ (128) 784 1st August 1984, a police officer searched premises with a warrant and seized documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence of a widespread fraud and that the documents were crucial to their investigations and that the investigation might be "hampered" and disclosure might provide "an opportunity to fabricate evidence". The police claim succeeded at first instance but was rejected in the Court of Appeal. Lord Justice May gave the leading judgment of a two judge court. I shall cite certain passages from his judgment as follows:

It is this balancing exercise, described in the cases to which I have referred, that is necessary then in dealing with my residual discretion if we reach stage 3 of the process.

It is as well at this stage to consider what happens once the balancing exercise has been undertaken. In this regard, Mr. Buckett cited Powell v Chief Constable of North Wales Constabulary 16th December 1999. He referred to a short passage from the concurring judgment of Roch LJ as follows:

Finally, by way of introduction, Mr. Buckett cited two cases concerning the question of whether or not the court should inspect the documents for which public interest immunity is claimed.

It was common ground between the parties that in the light of the evidence and these authorities that I have mentioned, that I should inspect copies of the documents of which disclosure was sought and I have done so.

The Claimant is a professional sports agent who acts for a number of wellknown footballers and other sports personalities.

In August 2006 Mr. Mulcaire, the second defendant, was arrested by the Metropolitan Police.

On 29th November 2006 Mr. Mulcaire pleaded guilty to a number of criminal charges, including:-

On 26th January 2007, Mr. Mulcaire was sentenced to six months' imprisonment by Gross J. for offences including the interception of Mr. Andrew’s telephone. In addition of course, Mr. Clive Goodman, the NoTW's royal reporter, was sentenced to four months imprisonment.

On 23rd April 2010, Mr. Andrew’s claim form was issued. Mr. Andrew’s particulars of claim allege at paragraph 32 as follows:-

On 22^nd June 2010, NGN filed its defence broadly not admitting the allegations of breach of confidence and acting in concert with Mr. Mulcaire. Paragraph 24.4 of NGN's defence read as follows:

Thereafter, on a date unknown, Mr. Mulcaire filed his defence. It is sufficient for me to allude to paragraph 22 which pleads as follows:

On 6th December 2010, I made an order requiring Mr. Mulcaire to answer certain Part 18 requests to which I shall come in a moment.

Also on 6th December 2010, I made an order requiring the Commissioner to make disclosure of six classes of documents by 4 pm on 12th January 2011. I can summarise the classes of documents to which I referred as follows:

Telephone records used by Mr. Mulcaire relating to the accessing of Mr. Andrew’s voicemails.

Documents evidencing communications between Mr. Mulcaire and another person concerning Mr. Mulcaire’s interception activities in relation to Mr. Andrew’s voicemails.

Documents evidencing communications between Mr. Mulcaire and employees of NGN concerning information about the claimant.

Documents concerning payments for information made by NGN to Mr. Mulcaire.

Transcripts of the Claimants’ voicemail messages obtained from Mr. Mulcaire

Documents found during the Commissioner’s investigation referring to the Claimant or his mobile phone.

On 12th January 2011, Ms Sara Royan of the Metropolitan Police’s Directorate of Legal Services wrote to JMW solicitors, then acting for Mr. Andrew, enclosing documents in response to categories 1 and 6 of the order dated 6th December 2010, and saying that there were no such documents existing in relation to categories 2-5 of the order.

They disclosed redacted call data for two landline numbers used by Mr. Mulcaire: 020-8641-3765 and 020-8641-2228. They disclosed call data for the number ending 3765 from 24th January to 17th February 2006 and data for the number ending 2228 from 1st December 2005 to 15th June 2006, and from 1st June 2006 to 24th August 2006.

The data disclosed shows, as Mr. Mulcaire has admitted, that he made 21 calls to Mr. Andrew’s direct dial voicemail, at least one lasting well over three minutes.

On 17th January 2011 Mr. Mulcaire provided further information to the claimant indicating that he had supplied the information from Mr. Andrew's voicemail to the news desk at the NoTW, and that he was requested to intercept the claimant’s mobile phone voicemail by Mr. Ian Edmondson.

On 25th January 2011, NGN dismissed Mr. Ian Edmondson, the News Editor of the NoTW in connection with the alleged phone interception activities.

On 26th January 2011, the Commissioner says that he received new information from NGN relating to the allegations of telephone interception in 2005/2006. On the same day, the Commissioner launched a major new investigation codenamed “Operation Weeting” under the direction of Deputy Assistant Commissioner Sue Akers QPM.

On 27th Jan 2011, Mr. Mulcaire gave further further information, having omitted to answer two specific questions.

On 11th February 2011 Farrer & Co, solicitors for NGN, refused to give any further information concerning who worked at the news desk. An application pursuing that information was, I was told, listed for today but has now been adjourned by consent.

On 1st March 2011, Ms Royan for the Commissioner disclosed unredacted versions of the pages from Mr. Mulcaire’s notebooks that mentioned Mr. Andrew. In particular, she disclosed unredacted versions of the documents that have been described as documents B, C, E and F, but not of the pages either side in the notebooks. She also disclosed an un-redacted version of the email exchange at Document D that I have already described, concealing only five mentions of one party to the email, who is said by Mr. Buckett to be a person of particular interest to the Police investigation, in other words a suspect. These unredactions were produced perhaps with the pressure of this application pending, and because Mr. Andrew’s solicitors asked specific questions about the pages suggesting to the Commissioner that he had redacted the names of a well known client of Mr. Andrew and his then girlfriend, which Mr. Andrew named. (That is the girlfriend of the client, not the girlfriend of Mr. Andrew). It turned

On 10th March 2011, Mr. Mulcaire provided yet further information, this time saying that he had provided the intercepted messages, not to the people on the NoTW news desk, whom he could not recall (which is what he had said previously) but that he had handed the messages to Mr. Ian Edmondson at the news desk. Mr. Reed relies heavily on this change of position as being evidence that more disclosure is needed to resolve precisely with whom Mr. Mulcaire was working in relation to the interception of Mr. Andrew’s telephone.

As I have already indicated, on 1^st March 2011 I gave judgment on similar applications for disclosure against the Commissioner made by three other claimants, Messrs. Galloway, Gascoigne and McGuire. I was asked by counsel for the claimants and by the Commissioner to give guidance as to the appropriate level of redactions, and I did so in the following terms in three areas:

In this case both sides have sought further and, in some cases, amended guidance in the light of significant further argument that has been advanced. In particular, much of the guidance I gave in Mr. Galloway’s case (albeit only two or three weeks ago) was common ground. Since then, in this case, Mr. Reed has changed his position and seeks guidance so as to allow less redaction.

The question here is whether the documents are likely to or “may well” support the claimant’s case or damage the defendants’ case. At this stage, I am not balancing the public interest in proper resolution of civil litigation against privacy rights or the public interest in criminal investigations being properly undertaken. I am simply deciding on the relevance of the documents in question.

I shall deal with this primary question in the four categories I have already set out.

Un-redacted call data for Mr. Mulcaire’s land lines.

Mr. Mulcaire’s contact lists and telephone contacts.

Un-redacted copies of the 2 pages either side of any mention of Mr. Andrew in Mr. Mulcaire’s notebooks.

Un-redacted copies of the chain of emails at document D uncovering the name of the party to them.

As I have already set out, Mr. Andrew’s case theory is that advanced by the prosecution in the trial of Messrs Goodman and Mulcaire. It is said that the call records will likely show that a journalist from NoTW called Mr. Mulcaire to ask him to gain access to Mr. Andrew’s voicemails, and that Mr. Mulcaire made calls for that purpose by first calling the telephone company to change the PIN number, a process known as “blagging”, and then calling the DDN number to intercept Mr. Andrew’s messages. Thereafter, Mr. Mulcaire, so the theory goes, will have called the relevant journalist back with the results, and passed on the DDN and PIN details to enable the journalists on some occasions to listen to the messages of interest himself or herself.

This process could obviously be revealed by the telephone records of Mr. Mulcaire, provided the relevant numbers were unredacted and could then be traced. It seems obvious therefore that the unredaction of the numbers called by Mr. Mulcaire shortly before and shortly after the calls to Mr. Andrew’s voicemail box would be likely to assist the claimant’s case.

Moreover, as Mr. Reed said in argument, the calls from Mr. Mulcaire’s mobile phone and the incoming calls to Mr. Mulcaire’s landlines would also be likely to assist in demonstrating whether the pattern or modus operandi alleged occurred

But I have no doubt that all calls inwards and outwards on days when Mr. Mulcaire called Mr. Andrew’s DDN would fall within the category of relevance required by Part 31.17. Indeed one might go so far as to say that without them it will be extremely difficult for the claimant to prove his case, that there was an effective interception of his phone lines at the behest of NoTW reporters, and then reports made of the interceptions to those reporters.

I limit the category of relevance to days on which interception calls were made, since generally the calls fall in the middle of a day, and seem to have calls both before and after them on the same day. It will be open, if these documents pass the other tests, for the claimant to seek in a particular case some calls on the previous or the following day for specific reasons.

Logically this follows from the phone records. I have inspected the contact list referred to at paragraph 1.6, which is the Buroclass notebook, which contained contact details and phone details for Mr. Andrew on document C, now disclosed unredacted. It appears to contain, though I am by no means certain this is all it contains, names of victims or potential victims of phone interception together with numeric details. Plainly in checking the numbers that concern Mr. Andrew, names and details of other victims will not be crucial. It is very unlikely that, in a single action brought by a single victim, it will be possible for that claimant victim to identify each of the numerous calls that Mr. Mulcaire made even on the day that an interception took place.

The names and numbers in the Buroclass notebook will only truly assist Mr. Andrew insofar as they are not the names of persons who are victims themselves. There may well be such names in the notebook, and I find that insofar as the notebook contains names of persons other than persons reasonably believed to be victims or intended victims themselves, the notebook would be likely to assist the claimant’s case. I shall deal later with the protection of private confidences.

Likewise, other contact lists, if any exist, as described in items 1.11 and 1.12 would undoubtedly assist the claimants in identifying telephone numbers that Mr. Mulcaire was using before and after interceptions. They would, therefore, be likely to assist the claimant’s case.

Subject to the caveats that I have entered, these categories of documents satisfy the first test of relevance.

I have looked carefully at the 3 extracts from Mr. Mulcaire’s notebook numbered documents B, E and F, and the two pages either side that have been shown to me. Pages B, E and F have now been voluntarily unredacted by the Police, as I have said.

It seems to me that there is no evidence whatsoever that adjoining pages in Mr. Mulcaire’s notebooks had anything to do with Mr. Andrew’s case. The evidence is rather the reverse, namely that Mr. Mulcaire was engaged in random noting of the tasks he was undertaking.

Mr. Reed’s request for the entirety of the notebooks would, as I have already indicated, raise different questions as to whether a systematic enquiry could be made from the whole of these books into Mr. Mulcaire’s activities over an extended period. The two pages either side will not assist Mr. Andrew to undertake such a systematic and detailed review.

I have taken into account the desire of Mr. Andrew to date the entries for his interception. But I do not think that, even though the pages either side do occasionally mention a date, they will by themselves assist in this process. If such a process were to be undertaken it would require the full notebooks which Mr. Reed has not at the moment sought.

I therefore find that the two pages either side the three mentions of Mr. Andrew in the notebooks would not, anyway by themselves, be likely to advance his case or damage the case of the defendants.

There is no doubt that the identity of the person with whom Mr. Mulcaire was in email communication about Mr. Andrew and his clients in April 2006 when interceptions were known to be taking place would be likely to assist Mr. Andrew’s case.

The only reason that the Commissioner has concealed the name of the person concerned is because he or she is said to be a suspect. The first stage is satisfied in this case, therefore. The question will be where the balance of public interest lies, to which I will turn in a moment.

This requirement seems to me to be largely, but not wholly, to follow relevance. I need to have regard here to the availability to the claimant of similar documentation or information from other sources.

This is a complex area. It can be summarised as follows:-

It is for these reasons that I am satisfied that this second requirement, namely that the documents are required for the purpose of disposing fairly of the claim and for saving costs, is satisfied in the case of the documents that I have held to be relevant. It would be costly and disproportionate to expect the claimant to make numerous third party applications for disclosure against telephone companies and others when the documents are already gathered together in possession of the Commissioner. Moreover, the disclosure that may be expected from NGN will be of a different character and will not replace the material that I am now considering that is held by the Commissioner.

As I have already said, the residual discretion brings into play, amongst other more general factors, two specific matters that are peculiarly important here, namely:

I will deal first with public interest immunity.

As the Court of Appeal's judgment in Arias make clear, very cogent evidence is required if documents are to be withheld on the ground that they would hamper

In this case, Mr. Reed complained that the Commissioner had not even produced his own evidence, evidence from the relevant Minister or evidence from the investigating officer. I do not think that is crucial in itself. The evidence is from a properly authorised person, Ms. Royan, speaking with the authority of the Commissioner. What is more important is the content of the evidence we do have, the core of which I have set out above when I cited from Ms. Royan's statement.

Ms. Royan’s assertion is that she believes that disclosure of the materials sought may tip off potential defendants before the police have had the opportunity to search their premises and arrest them. She says the element of surprise will be valuable, and will “ensure potential suspects cannot collude and/or destroy incriminating evidence even this long after the alleged phone hacking activities and should not therefore be discounted”. She says that the Police would wish to have the best opportunity of preserving the documentary evidence that may exist by carrying out an unencumbered criminal investigation. She is concerned that the disclosure of this information may allow the suspects some defence in any forthcoming criminal proceedings.

The problem with these arguments, says Mr. Reed, is that the horse has already bolted. The names of some five NoTW journalists allegedly involved in phone interception activities have been mentioned in court already in this case. They have been published in repeated press articles and have been broadcast as recently as Monday night on the eve of this hearing in the BBC’s Panorama Programme. The idea that the journalists at the NoTW who may be suspects in

Mr. Reed may have put his case a little high. I accept what Ms. Royan says, namely that even a long time after the event, some documents may well remain available. But as regards the idea that there may be suspects of the police investigation who do not know they are being investigated and may, therefore, be surprised when they are approached by the police, I am afraid I cannot accept that that is likely. These 14 civil cases, and others that are in the pipeline, have been conducted in a blaze of publicity, and they followed a Parliamentary investigation and Operation Motorman. The ground has been well raked over in the media and in public court hearings.

In regard to the claimed public interest immunity, I have ultimately to weigh up the public interest in protecting the police investigation against the public interest in disclosure to enable a fair and expeditious resolution of these proceedings. It is useful to look at both sides of the balance.

On the police investigation side, I have already said that whilst I understand the desire to keep the names of suspects secret, I doubt that any of them can truly be in doubt about who they are.

Moreover, I do not accept that revealing the documents I have indicated to be relevant would have the effect of tipping off that is feared. The documents are simply phone records and address books which may show the names of NoTW journalists and others with whom Mr. Mulcaire was in contact. This in itself will not tip anyone off since the claimant will be bound by an obligation only to use the information for the purposes of the litigation. And even if the information is used to approach witnesses, those persons are hardly likely to become more agitated by the prospect of becoming suspects in the police investigation than they already have become as a result of the media coverage. I am inclined also to think that the release of hitherto unrevealed names of suspects can be protected by an express order preventing the solicitors for the claimant revealing those names to his client or to any third party without the permission of the court, and directing that these persons are also referred to in court by an agreed lettering code.

With this precaution in place, I do not think the public interest in favour of the privilege weighs very heavily. One might say, perhaps ungenerously, that the police have had many years to investigate these matters. In some measure, the existence of these highly publicised civil claims sparked the renewed interest of the police in the then closed investigation.

I should say also that the Commissioner has not given me any confidence that his desire to protect the material for “3 months” is a reliable estimate of the time

In addition, I take into account that the material itself is not of a kind, like in Frankson, which was provided to the police in the expectation of confidence. It was seized from Mr. Mulcaire as the fruits of his crimes. Whilst the material contains information confidential to numerous third parties, it is not information that the public interest requires inherently to be protected. If the material sought were materials prepared by the police for their investigations (for example, their own analysis of the phone records) that would be a different matter altogether, but at the moment such material is not sought.

On the other side of the balance, this case and the other cases cannot be fairly tried without the necessary information being provided to enable the court fairly to evaluate the claims brought against NGN and Mr. Mulcaire.

The documents that the claimant seek go to the heart of his case, that NGN and Mr. Mulcaire conspired to intercept his phone and use his confidential information for the purposes of journalism. This case is already five years old, in that we are talking about phone interceptions in early 2006. Memories fade fast, and the case cannot be delayed indefinitely whilst the police investigation proceeds. There is much work to be done by the claimant to get his case in order (just as there is much work to be done by the police to get their renewed investigation in order).

There is presently a trial in this case fixed for January 2012. If I were to decline or adjourn this application, that trial date would be jeopardised. Such delay would not be in the interests of justice. I shall now be case managing all the phone interception cases and shall be keen to see them resolved speedily and in an orderly proportionate and cost effective manner. I simply do not think that waiting for some months for the police investigation to take its course is a reasonable option, bearing in mind the relatively flimsy grounds put forward on behalf of the Commissioner and the publicity that these cases have already been accorded.

All in all, whilst I accept that the Commissioner would rather undertake his investigation in the calm of the knowledge that Mr. Andrew’s claims and the other 13 claims were not proceeding, and that the documents the police hold were not being sought in those actions, I do not think that such a situation is now reality. The police only re-started their investigation in response to the publicity and new documents emanating from NGN. They cannot now prevent the public being interested in the matters they are investigating, nor the victims

It is for these reasons that I was unattracted by delaying this application. These matters are old. The Commissioner investigated them a long time ago, and is now doing so again. But in my judgment, no sufficiently strong public interest has been demonstrated to show that the new investigation will be significantly hampered if the disclosure sought is provided.

The police have been assiduous in seeking to protect third party confidences in giving the disclosures they have. Mr. Reed, indeed, complains that they have been over zealous in this regard; even to the extent of redacting Mr. Andrew’s own clients from the notebooks, as I have indicated. But I do not need to comment on the history; I only need to decide how matters should be resolved for the future.

It seems to me under this head that I have to balance the interests of third parties to privacy against the public interest in disclosure so that the actions can be fairly tried, as Eady J. did in the Kelly Hoppen case to which I was referred.

It is useful to consider the documents again in this regard under the categories that I have mentioned before.

The question here is whether unredacted phone numbers should be disclosed. In the first instance, the numbers were redacted on the call data emanating from Mr. Mulcaire’s land lines.

They will need to be disclosed however for the purpose of the analysis I have already described, namely in order to enable the claimant to ascertain whether NoTW reporters called Mr. Mulcaire to commission the interception and were then contacted thereafter with the information obtained.

Previously, I suggested that numbers that did not belong to another victim in the notebooks should have the last five digits redacted so that the claimant could see if he possibly recognised the numbers before asking for further details. That would not be satisfactory here, as the investigation requires the claimant to ascertain the identity of the phone numbers.

It seems to me that the call data should now be revealed unredacted for the days on which interceptions were undertaken, as I have already indicated.

The question is how to protect third party confidences. I suggest that the police should be permitted to redact the DDN or phone numbers of any other victim of interception of which they are aware. This should protect the bulk of confidences. As for the other numbers which may be revealed, they may be of NoTW staff or of third parties, but I see no reason to protect these beyond the known victims as I have indicated.

All the telephone numbers disclosed should, however, be subject to an embargo on the solicitors and their client disclosing to third parties, save for the purposes of specific investigations aimed at advancing the case.

I have already indicated that the names and all numbers of those persons thought by the Commissioner to be victims or intended victims of interception should be redacted from the contacts list (except for those victims admitted to be such in the criminal proceedings or elsewhere).

The other names and numbers are unlikely to require such a high level of protection. It seems to me that it would be sufficient for any passwords and PIN numbers and account numbers to be redacted (even though these other persons may well not have such numbers shown) provided the police show what category of number or code has been redacted in each case.

I will not be ordering disclosure of these documents, so there is no need to deal with the privacy balance.

As I have already indicated, the second part of the application concerns a request that the Commissioner should notify the claimant whether he has in its possession:-

Call data concerning incoming calls made to Mr. Mulcaire’s two relevant lines and the full period of such records.

Call data concerning incoming and outgoing calls from any other numbers, the full period of the records and the owner of the number in question.

As I have said, Mr. Buckett has already told the claimant that the Commissioner has one page of records concerning para.2.1, but he has not indicated the period of that record.

Mr. Buckett submits that, even before coming to the question of jurisdiction, the second claim is hopelessly wide. It covers anybody’s phone at all, whether related to Mr. Mulcaire or telephone interception or not. I imagine, however, that Mr. Reed meant to limit his claim to data held in relation to the phone interception investigation.

I would say that, even with that limitation, this request is too wide. I propose to consider it as if it was limited to records concerning calls on lines used for making calls by or to Mr. Mulcaire.

Before coming then to the question of the appropriateness of the order sought, I should deal with the jurisdiction to make the order. Part 31.17 relates only to orders made against non-parties for disclosure of documents or classes of documents. It does not expressly permit the disclosure of information about documents. Indeed, many of the cases to which I have but briefly referred debate at some length whether classes of documents can be ordered to be disclosed even though it is clear that many of the documents in the class will not themselves individually be relevant to the claim (see e.g. Three Rivers and American Home Products v Novartis).

Mr. Reed submits that there are two possibilities. Either (a) there is an ancillary jurisdiction to Part 31.17 allowing a party to interrogate a non-party as to what documents it holds, or at least to allow the court to make an order that a nonparty say whether it holds specific classes of documents, or (b) that the claimant can apply for these classes and wait to be told in response whether the police have them.

It seems to me that the position can only be resolved by reference to the rules. The cases I have mentioned debate at length whether classes of documents, some of which may well be relevant, can be disclosed under Part 31.17. If the answer to that question were that the court could order the non-party to say what he had and what was relevant, that would have been a quick answer to those debates. If the parties had consented to a pragmatic solution, that is fine, but the Commissioner has not consented here, probably because he does not want to trawl through what may be thousands of documents looking to identify precisely what they are.

Moreover, the documents in question here are not necessarily ones taken from Mr. Mulcaire. They are likely to be the fruits of the police’s own ongoing investigations as part of Operation Weeting. It seems to me, therefore, that one should be cautious before burdening the police with a massive amount of additional work in relation to the documentation they may recently have obtained for the purposes of an ongoing criminal investigation.

I propose then to consider the matter as if it were an application for these documents under Part 31.17, since it will save time and money for me to do so. If Mr. Buckett wants a formal application issued, he can ask for it.

The first category of incoming calls to Mr. Mulcaire’s two known numbers is narrow. It is obviously potentially relevant, if, but only if, it relates to days on which interceptions were made of Mr. Andrew’s voicemail. I propose to order that unredacted copies of any call records that show incoming calls to Mr. Mulcaire’s phones on dates upon which interceptions of Mr. Andrew’s voicemails are known to have been made or attempted. The police will only need to look at one page for this purpose. I have considered the confidentiality terms on which the Commissioner received this document, but since it is (if of the relevant date) likely to be of direct and important relevance to the fair trial of the action, I think the balance lies in favour of its disclosure.

The second category sought is very wide indeed even if restricted in the way I have already suggested. Moreover, I have no reason to suppose that, in making disclosure of call records the police have not complied properly with my 6th December 2010 order that required disclosure of the following four categories, as previously summarised:

Telephone records used by Mr. Mulcaire relating to the accessing of Mr. Andrew’s voicemails.

Documents evidencing communications between Mr. Mulcaire and another person concerning Mr. Mulcaire’s interception activities in relation to Mr. Andrew’s voicemails.

Documents evidencing communications between Mr. Mulcaire and employees of NGN concerning information about the claimant.

If the Commissioner, therefore, had relevant records of Mr. Mulcaire’s mobile number, they would presumably have said so in response to categories (1) and (6) at least. They obviously did not at the time they complied with my first order. Moreover, the Commissioner has reviewed his compliance with my order in this and other cases. If he has obtained more records recently in the course of his ongoing investigation, that disclose hitherto unknown interception activities, I would expect him to have shared that information with the victim, Mr.

In the meantime, I do not think it can be said that the wide order sought by Mr. Reed in paragraph 2.2, even if narrowed as I have suggested, is likely to assist his case. It is certainly not clear that the entire class would do so. Rather, it is likely that the bulk of the entire class would be irrelevant, and there is no case for suggesting that, even viewed as a class, the documents meet the condition of relevance, in all the circumstances including the fact that disclosure has already been made under the 6th December order.

I would anyway only have ordered disclosure of records of calls made on days when interception took place, but for the reasons I have given such an order is not appropriate in response to the present application.

I do not need to consider the second and third stages in relation to the application under paragraph 2.2.

I have already indicated some of the ways in which privacy of the material that must now be disclosed should be protected. I should, however, deal specifically with Mr. Buckett’s proposals for guidance in this regard and with the guidance I previously gave.

In relation to Mr. Mulcaire’s handwritten documents, the Commissioner suggested a regime of redactions, with which I largely, but not wholly, agree.

I will give the following guidance, which I hope is consistent with what I have indicated above. If it is not I will hear counsel so as to make sure that it becomes so.

In relation to Mr. Mulcaire’s handwritten notes, the Commissioner will normally disclose pages that mention, refer or relate to the claimant. In relation to these pages ordered to be disclosed (but not to contact lists):-

The Commissioner should not redact:-

The Commissioner shall redact (specifying the nature of that redaction, using shorthand):-

As far as contact lists are concerned, and indeed any other list of names in the hand-written notes, the Commissioner should redact:-

In relation to unredacted call data that has been ordered to be disclosed (for the days of known interceptions of the claimant’s voicemail box) the Commissioner may redact the DDN or phone numbers of any other victim or intended victim of interception of which they are aware (apart from the claimant and people associated with him).

I should make clear, as requested by Mr. Buckett, that unknown numbers in the handwritten notes and contact details that are not believed to relate to other victims or intended victims should not be redacted. Otherwise the linkages that the claimant seeks legitimately to draw with NGN contacts and clients and friends of the claimant will be impeded. Moreover, the five digit solution that Mr. Reed suggested in Mr. Galloway’s case (and I acceded to) was a first stage only. I do not think the Commissioner should be put to more work than necessary. This solution prevents the Commissioner having to revisit these numbers every time a claimant asks for the last five digits to be unredacted. The privacy in these numbers is not, as Mr. Reed submitted, like intimate details of a person’s private life. With the other protections I intend to put in place, it is unlikely that the owners of these numbers will be affected at all - at worst they might receive one or two calls from a solicitor asking their names or possibly asking to interview them.

My previous guidance given in Mr. Galloway's case stands but must be amended and slightly abbreviated as follows:-

Telephone numbers on the same page as the name of the claimant or material related to the claimant should not be redacted unless they are numbers or DDN numbers for other persons thought by the Commissioner to be victims or intended victims of Mr. Mulcaire’s interception activities.

The names of people who may be employees of the NoTW should not be redacted when disclosure is made. Nor should the names of people associated with the claimants be redacted. The only name redaction on relevant pages disclosed should be those thought by the Commissioner to be other victims or intended victims of Mr. Mulcaire’s interception activities (apart from victims that have been admitted as being victims in the criminal proceedings or elsewhere).

Account numbers, codes and passwords should normally be redacted unless

For the reasons I have given, having undertaken the balancing exercises required by the authorities, I do not find the Commissioner’s claim to public interest immunity made out.

Applying the three stage test applicable under Part 31.17, I intend to order disclosure of the following documents, subject to the redaction regime already set out above:-

Unredacted copies of outward call data from Mr. Mulcaire’s landline telephone numbers 020-8641-3765 and 020-8641-2228 for the days on which calls are known to have been made by Mr. Mulcaire to the claimant’s voicemail box.

The red Buroclass notebook referred to at paragraph 1.6 of the draft order, and any other hard copy telephone contact lists belonging to Mr. Mulcaire, and any telephone contact lists stored on Mr. Mulcaire’s mobile phone.

A copy of the chain of emails referred to at paragraph 1.7 of the draft order.

Copies of any call records that show incoming calls to Mr. Mulcaire’s landline telephone numbers 020-8641-3765 and 020-8641-2228 for the days on which calls are known to have been made by Mr. Mulcaire to the claimant’s voicemail box.

I make no order in relation to the adjoining pages of Mr. Mulcaire’s manuscript notebooks (apart from the Buroclass address book) but that should not be taken as in any way pre-judging an application that may later be made for disclosure of the entirety of the manuscript notebooks on broader grounds than have been advanced at this hearing.

Two further protections should be imposed to protect the police investigation and privacy:-

The solicitors for the Claimant should not reveal the names of any NoTW staff that are revealed in the documents disclosed (but not made public already in phone interception cases) to their client or to any third party without the permission of the court. These persons will always be referred to in court from now on by an agreed coded lettering.

The solicitors to the claimant and the claimant himself must not reveal the telephone numbers and any telephone details disclosed under this order to

The provisions of Part 31.22(1) will also apply to disclosures pursuant to the order I shall make.

I will hear counsel on the question of the precise form of the order and costs.