Various Claimants v News Group Newspapers Ltd & Anor

When these applications were fixed for hearing on the 7^th September 2012, there were three matters to be considered in this mobile telephone voicemail interception (“MTVI”) litigation. They were central to the fair and expeditious trial of the second tranche of cases now likely to take place in June 2013. They were (i) whether exemplary damages are, or might in theory be, available to the Claimants in these cases; (b) whether the Claimants should be permitted further to amend their Generic Particulars of Claim (the “GPOC”); and (c) the appropriate scope of further disclosure. Each of these questions was in some measure related to the issue of the proportionality of the litigation.

After the first day of argument on the exemplary damages issue, Mr Hugh Tomlinson Q.C., leading counsel for the Claimants, announced that his clients had decided to withdraw their claims for exemplary damages essentially because (i) they did not want to prejudice the ongoing criminal proceedings against various defendants including the second Defendant, Mr Glenn Mulcaire (“Mr Mulcaire”) and certain erstwhile executives and journalists working for the News of the World (the “NotW”), and (ii) the Claimants thought they could be adequately compensated by the awards of ordinary and aggravated damages that are already sought.

With exemplary damages disposed of, only the questions of amendment and disclosure remained. On paper, the differences between the parties on these issues were relatively modest, but when the argument began, the widening gulf (which I have observed emerging in this litigation for some time) became more clearly apparent.

In essence, the problem that I have to resolve concerns the way in which this litigation should be managed in the future, having regard to cost, proportionality and the overriding objective.

The first tranche of some 60 MTVI cases was fixed for trial in February 2012, and all the cases were settled, the last one on the morning that the trial was due to begin. In total, disclosure has been given by the Metropolitan Police Service (the “MPS”) in approximately 680 cases, and 154 claim forms have been issued in the second tranche. I originally directed a trial of lead cases and generic issues from the second tranche of cases for February 2013. That date has now been pushed back, and the trial has been fixed this week to commence in June 2013. In managing this litigation thus far, I have attempted to deal with matters expeditiously so that those that are entitled to compensation can obtain their damages as soon as possible and move on. This approach has been actively supported by both the Claimants and the first Defendant, News Group Newspapers Limited (“NGN”).

The problems that have now transpired did not emerge in the first tranche of cases, and NGN makes the point that those cases were disposed of satisfactorily without the additional disclosure and amended claims that the Claimants now seek. But NGN’s main point is that there is no need for any further disclosure because the cases can be fairly and proportionately tried on the basis of the material already available, the case specific disclosure from it and from the MPS, and on the basis of the generic admissions that it has made.

NGN submits that it wishes to settle all the MTVI cases that have been brought or intimated against it. 82 cases have been settled so far. Indeed, NGN has set up its own private compensation scheme presided over by Sir Charles Gray to allow those that prefer anonymity to be compensated outside these proceedings. The Claimants too wish to settle, but are concerned to know the facts about what happened by way of intrusion into their private lives before they attempt to do so. It was with that in mind that I set up the regime of pre-action disclosure and consequential directions right at the beginning of the second tranche of cases in February 2012. Things have not proceeded quite as quickly as I hoped they would at that time, but I should be able to select lead cases for the June 2013 trial in the next few weeks. It may be that the process will turn out just as it did in the first tranche of cases – with all the cases settling before the trial. That would not in itself be a bad thing. But I must not assume that this will happen. I intend to set a course that will enable the court to determine any remaining issues of liability and assess damages in sufficient lead cases to act as a blueprint to allow the other cases to settle.

The issues now raised are further complicated by the ongoing criminal proceedings. Just recently, Fulford J has directed that a trial of those proceedings will take place starting in September 2013. Counsel for Mr Mulcaire, Mr Gavin Millar Q.C. and Ms Alexandra Marzec, have repeatedly reminded me of the need to ensure that nothing that happens in these proceedings should prejudice Mr Mulcaire’s criminal trial. That is something that I unhesitatingly accept. It applies equally to the trial of the other criminal defendants who are not represented in these proceedings. But it is something that needs to be kept under careful review. I was somewhat dismayed to be told by Ms Marzec at the end of the hearing on 1^st October 2012 that she was already concerned by the publicity generated by these proceedings. With the consent of the parties, I have imposed a regime of confidentiality intended to ensure that future criminal proceedings are not prejudiced. Moreover, in all hearings, counsel have observed a practice of avoiding reading out sensitive documents. This has largely avoided the need to hold hearings in private, albeit that some short sessions in private were needed at this hearing to consider the detail of some of the more sensitive disclosed documents.

I wish to emphasise at this juncture in this public judgment that, if Mr Mulcaire or any other person believes that the progress of these proceedings is likely to prejudice the criminal trials, an appropriate application should be made to me at the earliest possible juncture so that I can consider it on its legal and factual merits. I do not want to see these proceedings disrupted for the reason I have already given, namely the need to see the Claimants properly compensated as soon as possible for any wrongs that are shown to have been committed. But if disruption is necessary, I want to know that as soon as possible so that the huge efforts and expenditure of the parties are not wasted. I shall, as I indicated in the course of argument, be less than pleased if an application that could have been made promptly is delayed any longer than is absolutely necessary.

I have already given some consideration to these issues, in a slightly different context, at the time of the trial of the first tranche of cases, when the Guardian Newspaper applied to be provided with copies of the GPOC, the Claimants’ Notice to Admit (the “Notice to Admit”) and NGN’s response to it (the “Response”) and agreed list of generic issues for the first trial (the “Generic Issues”). When that trial was in prospect, Mr Mulcaire applied for a postponement of reporting order under section 4(2) of the Contempt of Court Act 1981 (“COCA 1981”), which he did not proceed with once it became clear that all the cases had settled. My judgment on the Guardian’s application, which also adverted to the COCA 1981 issues, is reported under the heading Various Claimants v. News Group Newspapers Ltd. [2012] 1 W.L.R. 2545, and I shall not repeat here what I said there. The upshot, however, was that the GPOC and the other documents, with certain limited redactions, came into the public domain after that decision.

In dealing with these applications, I need first to set out in some detail the chronological background. This explains how we have reached the present position, and indeed why we are where we are. There were suggestions in the course of argument that the provisions for generic pleadings and generic issues might have been an error. I do not think that is the case. Generic issues were of great importance when they were ordered. The fact that there are now many fewer or (if NGN’s submissions are accepted) no generic issues remaining to be determined is a function of the success of the procedure adopted, not its failure.

The chronology also explains why the abandonment of the claim for exemplary damages is so significant. The exemplary damages claim raised fundamental questions as to NGN’s conduct in relation to MTVI and its alleged calculation as to the profits to be made from it, which were generic issues par excellence. These issues only disappeared on the second day of this hearing. But, as will appear later in this judgment, as it seems to me, their disappearance places a very different complexion on the shape of the litigation as a whole.

Before turning to the chronology, it is useful I think, to say something about the nature of aggravated damages, which all the Claimants still seek.

The nature of aggravated damages was analysed in Lord Devlin’s speech in the House of Lords in Rookes v. Barnard (No. 1) [1964] A.C. 1129 at page 1221, where he said: “Moreover, it is very well established that in cases where the damages are at large the jury (or the judge if the award is left to him) can take into account the motives and conduct of the defendant where they aggravate the injury done to the plaintiff. There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings of dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation. Indeed, when one examines the cases in which large damages have been awarded for conduct of this sort, it is not at all easy to say whether the idea of compensation or the idea of punishment has prevailed”.

The Law Commission’s report of September 1997 entitled “Report on Aggravated, Exemplary and Restitutionary Damages” drew on Lord Devlin’s speech to define aggravated damages as “damages awarded for a tort as compensation for the plaintiff’s mental distress, where the manner in which the defendant has committed the tort, or his motives in doing so, or his conduct subsequent to the tort, has upset or outraged the plaintiff. Such conduct or motive ‘aggravates’ the injury done to the plaintiff and therefore warrants a greater or additional compensatory sum”.

Lord Woolf MR considered the quantum of aggravated damages in Thompson & Hsu v. Commissioner of Police of the Metropolis [1998] QB 498 at pages 516-9, where he held that they are awarded where there are aggravating features which mean that the claimant would not receive sufficient compensation for the injury if he received only a basic award, and that an award should not normally exceed the amount of that basic award. At page 512, Lord Woolf said that: “[a]s the Law Commission point out … there can be a penal element in the award of aggravated damages. However, they are primarily to compensate the plaintiff for injury to his proper pride and dignity and the consequences of his being humiliated”.

It is also well-established that the court can take into account the defendant’s conduct after the wrong itself in assessing aggravated damages. For example, there are numerous cases where later activities and the conduct of the trial have led to greater awards of damages. As the editors of Gatley on Libel and Slander 11^th edition said at paragraph 9.14: “[t]he conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff's feelings, so as to support a claim for ‘aggravated' damages, includes a failure to make any or any sufficient apology and withdrawal; a repetition of the libel; conduct calculated to deter the claimant from proceeding; persistence, by way of a prolonged or hostile cross-examination of the claimant, or in turgid speeches to the jury, in a plea of justification which is bound to fail; the general conduct either of the preliminaries or of the trial itself in a manner calculated to attract wide publicity; and persecution of the plaintiff by other means”.

Gatley continued at paragraph 9.15 by drawing attention to the overlap between aggravated and exemplary damages as follows:-

“There are a number of problems with aggravated damages, though they are more theoretical than practical. First, it is difficult to draw a clear line between them and compensatory general damages, simply because the latter are anyway “at large” and, in the case of claimants who are natural persons, contain an inbuilt element for injury to feelings. It may be that, as a general rule outside the area of defamation, something in the nature of malicious or wilful, outrageous conduct on the part of the defendant is required for an award of aggravated damages and they cannot therefore be awarded in a case of negligence, however gross, nor, even where such conduct is present, where the claimant is unaware of the defendant's state of mind, in which case the line would be easy to draw in theory even if it presented evidential difficulties in practice. …

Though the expression “aggravated damages” is often used, it might be better if instead we simply said that certain features of the case might aggravate the damages. There would then be no difficulty in saying that a vigorously conducted bona fide defence might increase the hurt suffered by the claimant and that a defence conducted in bad faith might increase the hurt still further. …

Secondly, there is the relationship between aggravated and exemplary damages. Even where aggravated damages are based upon the malice of the defendant they are in principle compensatory because they are concerned with the way in which the injury to the claimant is increased by the motive or conduct of the defendant: a libel which is maliciously published and persisted in is likely to be more hurtful than one which is published in error and promptly corrected. Hence aggravated damages survive in jurisdictions which have abolished exemplary damages. However, from the point of view of the defendant, it appears that his liability is increased because of his improper conduct and the fact that there is therefore an inbuilt punitive element in aggravated damages means that this has to be taken into account if there is a claim for exemplary damages, which are overtly punitive in their purpose”.

These authorities will assume some significance when I come to consider the appropriate extent of the further disclosure that is sought, since the question as to whether a document falls within CPR Part 31.6 is to be answered by reference to the factual issues that will arise for decision at trial (see Harrods v. Times Newspapers Limited [2006] EWCA Civ. 294 at paragraph 12 per Chadwick LJ).

The Claimants allege that NGN entered into an arrangement with Mr Mulcaire in or about October 1998 whereby Mr Mulcaire would, on request, obtain information about specific individuals by unlawful means including MTVI.

NGN admits that in or about 2001, it entered into an arrangement with Mr Mulcaire under the terms of which Mr Mulcaire agreed to obtain, on request, information about specific individuals and third parties connected with them.

In August 2006, Mr Mulcaire and Mr Clive Goodman (a royal journalist at the News of the World – “Mr Goodman”) were arrested in connection with MTVI activities.

On 29^th November 2006, Mr Mulcaire was convicted of unlawful MTVI in respect of 8 victims, and Mr Goodman in respect of 3 victims. Both served prison sentences.

In September 2010, a letter before action was written to NGN on behalf of one of the first Claimants, Ms Sienna Miller.

On 5^th October 2010, Floyd J ordered Norwich Pharmacal disclosure against the MPS in the case of Mr Andy Gray, and on 6^th December 2010, I ordered disclosure against the MPS in Mr Skylet Andrew’s case.

On 16^th March 2011, the Chancellor of the High Court assigned the MTVI cases to me.

On 15^th April 2011 and 20^th May 2011, I decided that the cases that had then been intimated should be resolved by way of a trial of generic issues and 5 or 6 lead cases.

In April 2011, the police made the first of the new wave of arrests.

On 25^th May 2011, the parties agreed the Generic Issues that I was to try in the first tranche, pursuant to my order of 20^th May 2011. These issues concerned NGN’s and

On 1^st July 2011, disclosure relating to the Generic Issues was ordered by 8^th August 2011, and I ordered that the Claimants should serve a list of facts that they wanted to be agreed.

On 13^th July 2011, the Prime Minister announced the Leveson Inquiry.

On 28^th September 2011, one of the then Claimants, Mr Jude Law served re-amended Particulars of Claim alleging for the first time that NGN had concealed unlawful actions and had deleted emails relevant to MTVI.

On 7^th October 2011, I ordered that NGN should provide remaining standard disclosure on the Generic Issues by 17^th October 2011.

On 7^th October 2011, the court gave the Claimants in four specific cases permission to amend their Particulars of Claim to include allegations that NGN had concealed documents and information concerning its MTVI activities.

On 11^th November 2011, Olswang, then solicitors for NGN, wrote to the Claimants’ solicitors with a list of generic concessions. Also on 11^th November 2011, NGN issued an application notice seeking an order that the Claimants’ claims for exemplary damages should be struck out, alternatively seeking summary judgment on the issue.

On 18^th November 2011, I ordered that NGN provide all outstanding generic disclosure (save for what was termed data pools 3 and 7) by 25^th November 2011, and that NGN file a statement from a proper officer explaining how it had discharged its disclosure obligations, to include an explanation of the deletion of emails. Also, at the hearing, on 18^th November 2011, NGN withdrew its claim to strike out the claim for exemplary damages and for summary judgment, and I ordered that all the Claimants were entitled to rely on all the facts proved at the trial of the Generic Issues in support of their claims. I ordered that the Claimants should serve a notice to admit facts and that NGN should respond to it.

On 29^th November 2011, the Claimants served the Notice to Admit. Paragraph 52 provided as follows:- “That senior employees and directors of the First Defendant knew about its wrongdoing and sought to conceal it by (a) putting out public statements it knew to be false and/or (b) deliberately failing to provide the police with all the facts and matters of which it was aware and (c) deliberately deceiving the police in respect of the purpose of payments to Mr Mulcaire and (d) destroying evidence of wrongdoing, which evidence included a very substantial number of emails and the computers of journalists A to C which had been in use during the Arrangement”. NGN complains that no admissions were sought in respect of the particulars of concealment pleaded in the four actions only 2 months before, and suggests that the Claimants thereby “correctly recognis[ed] that, if the general allegation of concealment was not disputed, proof of the particulars relied on in support of it would be unnecessary”.

On 13^th December 2011, NGN served its Response to the Notice to Admit including the following at paragraph 52: “The First Defendant is unable to make any admission as to the state of knowledge, motivation, or states of mind of the unidentified “senior employees and directors” referred to at paragraph 52 of the Notice to Admit, which are not within its knowledge. Neither is it able to admit or deny the unparticularised allegations set out at paragraphs 52(a) – (d). Without prejudice to those non-admissions, and solely in the interests of the prompt and efficient determination of these claims, the First Defendant consents to the assessment of aggravated damages by the Court on the basis of the facts alleged at paragraph 52”. The Response also made a number of fundamental admissions. I shall not set them out in detail, but they included detailed admissions concerning:-

On 19^th December 2011, Olswang, on behalf of NGN, wrote to Bindmans LLP, then the co-ordinating solicitors for the Claimants, saying that NGN had made extensive admissions as to the existence of the arrangement between NGN and Mr Mulcaire and as to the nature and scope of the unlawful activities and in respect of paragraph 52 of the Notice to Admit. Olswang continued:

“the original disclosure was carried out before these amendments [those relating to concealment] were made. No disclosure has been given of documents which are relevant to these broader allegations which the Claimants have now made, although some of the documents already disclosed touch upon these issues.

We have considered whether further disclosure should be given (over and above what has already been ordered) and whether further searches should be carried out in relation specifically to these broader issues. The conduct of further searches would obviously be a time-consuming and expensive task and would take a significant period of time …

As noted above, we consider that the effect of [NGN’s] [Response] is that matters to which these documents would be relevant are no longer in issue. The Claimants do not therefore require further generic disclosure to make out their claims. … We do not therefore consider that it would be either reasonable or proportionate for further generic disclosure to be provided or further searches to be undertaken (save in so far as specifically ordered by the Court).

If you disagree with our analysis, you will let us know and explain why, identifying, in particular, any generic issues in relation to which you consider that further disclosure would be proportionate, in the light of the admissions which [NGN] has made”.

It is important to note at this stage in the chronology that Bindmans did not reply to this letter, and, in particular, did not respond to the invitation set out in the last paragraph above.

On 11^th January 2012, the Claimants served the original GPOC. The GPOC pleaded allegations of concealment by NGN in paragraphs 34-35 in support of NGN’s liability, and in support of the claims for aggravated and exemplary damages. The particulars were similar to those pleaded in October 2011 in the four individual cases. In essence, these paragraphs alleged:-

On 19^th January 2012, I ordered disclosure of material requested by the Claimants concerning the concealment of NGN’s MTVI activities. Paragraph 52 of the Notice to Admit and NGN’s Response to it were referred to in my judgment. I made it clear in paragraph 10 of my judgment that I was ordering the disclosure sought as it bore on the question of exemplary damages:

“In that state of affairs, it is not surprising that the court is likely to be somewhat suspicious and circumspect about the contention that enough is enough where disclosure is concerned. As I said in the course of argument, if I had acceded to suggestions back in the early part of 2011 that disclosure was not necessary because admissions had been made, the entire course of the phone hacking history might be very different from what it has been. It seems to me that one of the arguments that Mr Reed is able to advance is that the material that may be found on particularly the three laptops that belong to an unidentified senior employee of NGN and do contain data post 2008 may well, on the evidence of the emails that I have already been shown, contain documents, or possibly even emails from another email address, which may bear upon the policy of deletion. It seems to me that it would be very far from disproportionate to require that those laptops be searched to uncover any further material which goes to the policy of deletion. It could, for example, contain material which bears not only on the time at which the documents being deleted were prepared, but also on why the concealment was being undertaken. That might have a considerable effect on the question of exemplary damages which is hotly contested both in fact and in law in this case and if, for example, there were emails which explain why deletion was so important then that could, as I say, bear on that question of exemplary damages because it could unlock another part of this case. Of course I cannot say that it will, but I have to consider, against the background of the provisions in the CPR that I have read out, whether it can be said to be proportionate to require this further search of these three laptops and the six desktops”.

On 27^th January 2012, Olswang wrote to Atkins Thomson, who had by this time been appointed as the lead solicitors for the Claimants, pointing out that they had had no response to their letter dated 19^th December 2012, and confirming that the concession made at paragraph 52 of NGN’s admissions applied for the purposes of the determination of all the issues in the proceedings, and not merely to the assessment of aggravated damages. Olswang repeated that NGN would not, save as required by orders of the Court as had happened on 19^th January 2012, disclose further documents relating to concealment.

On 30^th January 2012, NGN served its defence to the GPOC. It did not plead to the concealment allegations in paragraphs 34 and 35 of the GPOC on the basis that it had consented to the determination of the claims on the basis of the facts contained in paragraph 52 of the Notice to Admit.

On 13^th February 2012, the trial of the first tranche of claims was due to take place. In the result, the trial was postponed until 27^th February 2012, when Ms Charlotte Church’s claim, the last unsettled claim in the first tranche, was finally settled.

Also, on 27^th February 2012 (Core1/17), I gave directions for the determination of the second tranche of claims, and ordered that the generic pleadings, admissions and disclosure could be relied upon by the Claimants in that tranche of claims, and that claimant specific information should be added to the GPOC in each case after the preliminary disclosure in each case from the MPS and NGN, so as to make up a whole Claimant specific Particulars of Claim in each case.

Still further on 27^th February 2012, I gave judgment in the application by the Guardian Newspaper to which I have already referred, in which the GPOC and the Notice to Admit and the Response were made public. Only paragraph 21 of the GPOC, and the names of specific journalists and NGN executives in specific parts of the documents were to be redacted, the names being replaced by numbered ciphers. Thus, from that time, the allegations of concealment in paragraphs 34-36 of the GPOC came into the public domain.

On 20^th April 2012, NGN applied for a Group Litigation Order under CPR Part 19.11. In the result, I declined to make such an order, but gave further detailed directions for the resolution of the second tranche of cases including orders as to the identification of common issues and lead cases, neither of which has yet occurred.

On 15th May 2012, three charges of conspiracy to pervert the course of justice were laid against Ms Rebekah Brooks and others. The charges relate respectively to the alleged permanent removal of seven boxes of documents from NGN’s archive (charge 2) and to the concealment of documents, computers and other electronic devices from officers of the MPS who were investigating MTVI activities (charges 1 and 3).

On 20^th July 2012, the Claimants served their draft amended GPOC (the “draft AGPOC”). This document added a new paragraph 35A alleging, by way of further aggravation, acts of cover up and concealment by certain named NGN executives. Paragraph 7 of the Confidential Schedule to this draft made allegations against individual executives of NGN concerning email deletion.

On 24^th July 2012, a total of 19 charges of conspiracy to intercept communications without lawful authority were laid against the following defendants: Ms Rebekah Brooks, Mr Andrew Coulson, Mr Stuart Kuttner, Mr Mulcaire, Mr Greg Miskiw, Mr Ian Edmondson, Mr Neville Thurlbeck and Mr James Weatherup. All of these defendants were either journalists, editorial staff or executives of NGN working for the NotW. So far as I am aware, none of them works for NGN or the NotW any longer.

On 29^th August 2012, the Claimants provided further information pursuant to NGN’s Part 18 request relating to the draft AGPOC including paragraph 35A.

On 31^st August 2012, NGN issued an application to strike out the Claimant’s claim for exemplary damages and/or for summary judgment on that claim.

On 3^rd September 2012, the Claimants served a notice of directions on NGN seeking further generic and specific disclosure.

On 7^th September 2012, I gave the Claimants permission to amend their GPOC (the “Amended GPOC”) insofar as the amendments were not opposed (including some minor amendments to paragraphs 34 and 35 alleging concealment of unlawful actions), and directed that the hearing of NGN’s strike out application and the Claimant’s remaining application to amend (relating principally to paragraph 35A of the draft AGPOC) should take place between the 25^th September and 1^st October 2012. I indicated that I thought it was now necessary for the court to review the future conduct of the litigation, since the Claimants were making further applications for disclosure and NGN was arguing that the Claimants already had all the material necessary fairly to assess the damages properly payable to them.

On 18^th September 2012, the Claimants’ solicitors wrote to NGN saying that they would invite the Court to substitute new drafts of paragraphs 34, 35 and 35A (the “revised draft”) for the then current paragraphs 34 and 35 of the Amended GPOC, and served a further notice to admit facts. The draft paragraphs 34, 35 and 35A are a slimmed down version of the original draft of 20^th July 2012. I do not intend to make a detailed comparison of the actual and draft pleadings. But it is clear that the revised draft contains less rather than more allegations. Mr Tomlinson says that it has been carefully drafted to try to ensure that there is no significant overlap between these proceedings and the forthcoming criminal trials. Moreover, most of the allegations made in the revised draft and its confidential schedule have appeared at one time or another before in either the GPOC or one of the various individual Particulars of Claim to which I shall refer in due course. Only the pleading of some recently disclosed emails in paragraph 7 of the confidential schedule to the revised draft were completely new, although Ms Dinah Rose Q.C., counsel for NGN, complained that there were more specific allegations against particular executives at NGN than had been made before.

On 21^st September 2012, the Claimants served a revised notice of directions on NGN seeking further standard and specific disclosure. I shall return to the precise terms of this notice in due course.

This hearing began on 25^th September 2012, and on 26^th September 2012, Fulford J held a preliminary hearing in the criminal proceedings and allocated a provisional trial date of the 9^th September 2013.

On 27^th September 2012, Mr Tomlinson withdrew his claims for exemplary damages and the claim to amend the GPOC in respect of that claim. He specifically withdrew:-

Mr Tomlinson relied on three specific cases pleaded in the middle of this year as demonstrating NGN’s approach to the litigation. These were the cases brought by Mr James Blount (better known as Mr James Blunt), Ms Eimear Cook, the ex-wife of the golfer Mr Colin Montgomerie, and by Mr Jeff Brazier, the former footballer who is now a TV presenter and reality TV star.

Without recording the details of these cases, NGN’s approach has been to admit interception where it is evidenced by call records and Mr Mulcaire’s notes, but not to admit any inferences as to interception or surveillance where there is no direct evidence of it. Moreover, NGN seems often to deny or not to admit the inference that published articles derived from intercepted or unlawfully obtained material. In each case, the specific claimants plead that aggravated damages should be awarded on the grounds of NGN’s concealment of its activities and destruction of emails.

Ms Rose submitted that many of the allegations made asked the court to infer that, because there had been one or more instances of MTVI, many other more extensive acts of surveillance and harassment had also taken place. She accepts, however, that in each of the individual cases, standard disclosure will be required, and that it will be open to the Claimants to ask the court to draw inferences of the kinds that the Claimants seek to be made from the material showing or implying MTVI and from the generic disclosed documents and from the admissions that NGN has made.

In Cobbold v. Greenwich LBC (9^th August 1999, unreported: referred to in the notes to the CPR at paragraph 17.3.5), Peter Gibson LJ said: “The overriding objective (of the CPR) is that the court should deal with cases justly. That includes, so far as is practicable, ensuring that each case is dealt with not only expeditiously but also fairly. Amendments in general ought to be allowed so that the real dispute between the parties can be adjudicated upon provided that any prejudice to the other party caused by the amendment can be compensated for in costs, and the public interest in the administration of justice is not significantly harmed”.

I shall say no more about the appropriate test for the amendment of pleadings bearing in mind that the way forward as regards the pleadings is now substantially agreed between the parties.

Part 31.6 of the CPR provides as follows:-

“Standard disclosure requires a party to disclose only —

(a)

the documents on which he relies; and

(b)

the documents which –

(i)

adversely affect his own case;

(ii)

adversely affect another party’s case; or

(iii)

support another party’s case; and

(c)

the documents which he is required to disclose by a relevant practice direction”.

Part 31.7 of the CPR provides as follows:-

“(1)

When giving standard disclosure, a party is required to make a reasonable search for documents falling within rule 31.6(b) or (c).

(2)

The factors relevant in deciding the reasonableness of a search include the following-

(a)

the number of documents involved;

(b)

the nature and complexity of the proceedings;

(c)

the ease and expense of retrieval of any particular document; and

(d)

the significance of any document which is likely to be located during the search.

(3)

Where a party has not searched for a category or class of documents on the grounds that to do so would be unreasonable, he must state this in his disclosure statement and identify the category or class of document”.

Part 31.12 of the CPR provides as follows in relation to specific disclosure or inspection:

“(1)

The court may make an order for specific disclosure or specific inspection.

(2)

An order for specific disclosure is an order that a party must do one or more of the following things-

(a)

disclose documents or classes of documents specified in the order;

(b)

carry out a search to the extent stated in the order;

(c)

disclose any documents located as a result of that search”.

Paragraphs 20-22 of Practice Direction 31B entitled “Disclosure of Electronic Documents” provides as follows:-

“20.

The extent of the reasonable search required by rule 31.7 for the purposes of standard disclosure is affected by the existence of Electronic Documents. The extent of the search which must be made will depend on the circumstances of the case including, in particular, the factors referred to in rule 31.7(2). The parties should bear in mind that the overriding objective includes dealing with the case in ways which are proportionate.

21.

The factors that may be relevant in deciding the reasonableness of a search for Electronic Documents include (but are not limited to) the following-

(1)

the number of documents involved;

(2)

the nature and complexity of the proceedings;

(3)

the ease and expense of retrieval of any particular document. This includes:

(a)

the accessibility of Electronic Documents including e-mail communications on computer systems, servers, back-up systems and other electronic devices or media that may contain such documents taking into account alterations or developments in hardware or software systems used by the disclosing party and/or available to enable access to such documents;

(b)

the location of relevant Electronic Documents, data, computer systems, servers, back-up systems and other electronic devices or media that may contain such documents;

(c)

the likelihood of locating relevant data;

(d)

the cost of recovering any Electronic Documents;

(e)

the cost of disclosing and providing inspection of any relevant Electronic Documents; and

(f)

the likelihood that Electronic Documents will be materially altered in the course of recovery, disclosure or inspection;

(4)

the availability of documents or contents of documents from other sources; and

(5)

the significance of any document which is likely to be located during the search.

22.

Depending on the circumstances, it may be reasonable to search all of the parties' electronic storage systems, or to search only some part of those systems. For example, it may be reasonable to decide not to search for documents coming into existence before a particular date, or to limit the search to documents in a particular place or places, or to documents falling into particular categories”.

In Nichia Corp v. Argos Limited [2007] F.S.R. 38, the Court of Appeal considered the nature of standard disclosure in a patent case. Jacob LJ reviewed the role of disclosure in English litigation, and pointed out that the legal profession had been slow to appreciate the differences between standard disclosure and the “reasonable search” that it requires, and the much wider pre-existing discovery within the concepts described by Brett LJ in Compagnie Financiere du Pacifique v. Peruvian Guano Co (1882) 11 Q.B.D. 55. Rix LJ adopted Jacob LJ’s “masterly review” and emphasised at paragraphs 71ff the provisions of Parts 31.6 and 31.7 to which I have already referred. He said at paragraph 72 that “a reasonable search should be tailor-made to the value and significance of the likely product of such a search”.

Parts 1.1 and 1.4 of the CPR as to the overriding objective provide as follows:-

The Claimants have applied to amend to add new paragraphs 34, 35 and 35A to their Amended GPOC in the form of the revised draft. In fact, as I have said, these paragraphs are hardly new at all. An expanded version of paragraphs 34 and 35 was included in the original GPOC in January 2012, and a version of paragraph 35A and the confidential schedule was included in Ms Cook’s specific Particulars of Claim in May 2012 and in other specific pleadings. Whilst it is true that NGN declined to plead to the earlier allegations on the ground that it had made the admissions in paragraph 52, the allegations remained and still remain on the record in these proceedings.

The details of the revised draft are not material, but it contains particulars of some disclosed documents passing between executives of NGN and of public statements made by NGN. The substance of the allegations are that certain editorial staff, journalists and directors of NGN:-

The above chronology explains the history of the proposals to amend the GPOC, but does not really explain what the application to amend was for. Mr Tomlinson accepted in his submissions that he probably did not need permission to reduce the breadth of the allegations he was making, but initially said that what he really wanted was to make NGN plead to the remaining allegations of misrepresentation and concealment contained in the revised draft.

Mr Tomlinson then moved towards the position where even a requirement that NGN should plead turned out to be more than what he really required. He explained that the application for permission to amend was made because he did not want it said at the trial that the Claimants could not give evidence about how upset they were by NGN’s public denials of its telephone interception and other activities, and about how NGN’s behaviour after the interceptions aggravated the Claimant’s losses.

Ms Rose’s response to the application to amend was to say that the amendments were objectionable for three reasons:-

When these three submissions were explained, it appeared that the real problem had been created by a confusion about the status of the generic as opposed to the specific pleadings. The generic pleadings were intended to be the platform to which the specific pleadings were grafted. They were intended to cover areas common to all or many cases. They had, however, become something of an end in themselves, which is certainly not what had been intended. As I indicated above, I do not think that the generic/specific distinction was a mistake. Whilst the claim for exemplary damages survived, there remained 4 hotly contested truly generic issues. But the position now is that a generic issue only needs to be tried if it can be shown to affect the damages that an individual claimant is likely to receive. Thus, to take an obvious example, the generic pleadings can raise the question of whether Mr Mulcaire was engaged by NGN from 1998 or from 2001. The issue will, however, only be relevant or require determination if there is any individual claimant seeking damages in respect of MTVI between 1998 and 2001.

Once this was realised, the parties limped towards an agreement on the amendments. It was agreed, in essence, that:

Though it was not mentioned at the hearing in this context, the Claimants have also served a new notice to admit to accompany their revised draft. It appears that NGN do not wish to admit much of its contents, although insofar as it relates to public statements, or merely confirms the veracity of contemporaneous documents or confirms admissions already made, it is hard to see why not. Such admissions might, as the Claimants submit, avoid the need for any detailed evidence at the trial of the concealment allegations, save for the Claimants evidence as to their own upset or outrage. It seems to me that NGN must take its own course in respect of this new notice to admit. If they deny allegations that are true, that may have costs consequences. If they genuinely believe that making admissions will prejudice the criminal trial, they will have to decide on the proper course to take. For the moment, I shall simply direct them to respond to the notice. I will not require them to admit or deny any particular allegation, conscious as I am that some of them are not yet pleaded at all as matters have turned out.

The Claimants’ application for disclosure is in respect of 6 categories (confusingly numbered in the revised notice for directions), the first 4 of which were intended to bolster the existing standard disclosure on generic issues, and the last two of which were applications framed as specific disclosure. The 6 categories are as follows:

First, the Claimants seek standard disclosure on generic issues in respect of the following:

Secondly, the Claimants seek standard disclosure on generic issues including reasonable and proportionate searches of:-

Thirdly, the Claimants’ request that, in this disclosure, the names of all Claimants in the first and second tranches of the litigation and all the Named Individuals who have been provided with disclosure in accordance with paragraph 3 of the Order of 27 February 2012 (as amended) shall be unredacted, save that nothing shall require the disclosure of the names of individuals who have been anonymised pursuant to any order of the court.

Fourthly, the Claimants’ request that NGN should provide new copies of all previously provided disclosure in which the names of all Claimants in the first and second tranche of the litigation and all the Named Individuals who have been provided with disclosure in accordance with paragraph 3 of the Order of 27 February 2012 (as amended) are unredacted, save that nothing shall require the disclosure of the names of individuals who have been anonymised pursuant to any order of the Court.

Fifthly, the Claimants seek specific disclosure and a manual search (for the purpose of disclosure under the first category) of the following:-

Sixthly, the Claimants seek specific disclosure of all 9 emails sent to or received from Mr Mulcaire on or prior to 8 August 2006, whether using the email address info@ninenewsandpr.com or shadowmenuk@yahoo.co.uk or otherwise that have not previously been disclosed by NGN.

The third, fourth and fifth categories are no longer contentious. The parties will agree an order that will deal with the third category to enable any future disclosure to avoid redaction of Claimants’ names and of the names of those who have sought MPS disclosure (Named Individuals) where that is appropriate. The fourth category will be withdrawn by the Claimants, but NGN has agreed to respond constructively to requests from the Claimants for unredacted copies of documents already disclosed, so that the Claimants can see where other Claimants and (where appropriate) Named Individuals are mentioned.

The fifth category is rather more significant. Whatever the outcome of the Claimants’ application for standard disclosure in relation to the documents mentioned in the first and second categories, NGN has agreed voluntarily to carry out manual searches for disclosable documents in this category. This is a very constructive proposal, which the Claimants have accepted. It does not, however, mean that I can avoid deciding the other live issues concerning the first, second and sixth categories.

Ms Rose has argued strenuously that the Claimants’ continuing requests for further standard disclosure on generic issues are disproportionate and inappropriate. She submits that the requests for further standard disclosure raise three issues as follows:

As to the first question, Ms Rose produced a helpful schedule of the generic issues between the parties, in order to show that there remained nothing between the parties in the light of the admissions that have been made.

Mr Tomlinson argued that this list missed the point, because his argument was that he needed ongoing generic disclosure, as a result of the very sparse documentation available in each individual case. What he wanted was as much generic material as possible so that he would ask the court at trial to infer in cases where there was very little call data or other specific disclosure that MTVI, surveillance and other unlawful activity had occurred. It was only when a clear picture of the scale and nature of NGN’s unlawful activities had emerged from that disclosure that the court, said Mr Tomlinson, would be in a position to make appropriate inferences enabling it to assess a fair figure for the ordinary and aggravated damages any particular Claimant should receive. Mr Tomlinson’s response to Ms Rose first point was, therefore, to raise her second. I can therefore deal with them both together. Mr Tomlinson also argued that he needed further generic disclosure to show how NGN operated in specific cases so as to understand the development of the hacking process, the relationship between journalists at NGN and Mr Mulcaire, and the ultimate publication of material derived from unlawful activity. He took me to examples of the disclosed documents to make good this point.

One cannot, in my view, consider the first two arguments without factoring in the third – namely the questions of the overriding objective, proportionality and costs. Thus, in the way I see the matter, Ms Rose’s three issues are all different facets of the same point. She says that enough is enough.

In my judgment, the position is now quite different to what it was when exemplary damages were an integral part of these claims. The 8 Generic Issues themselves (as agreed between the parties and apart from those concerning exemplary damages) are largely covered by the admissions that NGN has made. The 4 Generic Issues relating to exemplary damages are no longer relevant. Aggravated damages, as the authorities I have already cited above show, are altogether different from exemplary damages. They are largely compensatory in nature and turn on evidence as to how the specific Claimant reacted to the defendant’s conduct. The reality now is that all the issues that remain are issues that will arise only in an individual case. For example: (i) the question of whether Mr Mulcaire was engaged between 1998 and 2001 will arise if and when an individual claimant alleges that he was; (ii) questions about the specific concealment activities of individual executives will arise if and when such allegations are raised in individual cases as having given rise to specific upset or outrage; (iii) questions concerning the unlawful accessing of emails will arise if and when an individual claimant contends that their emails were accessed.

The reality is that NGN’s generic admissions are far reaching. They admit that NGN’s journalists sought and acquired unlawfully obtained information on a large but unquantifiable number of occasions between 2001 and 2006. They admit a depth of unlawful activity from which such information was obtained. These admissions are intended to give the court the ability to draw inferences from the sparse concrete information available in any particular case, and Ms Rose accepts that the court will be able, in an appropriate case, to do just that.

The key point here is that damages need to be assessed in individual cases, not generically, even though I hope to be able to provide a framework of the proper damages for different classes of case to enable other cases to be resolved. Thus the generic issues are now something of a distraction. I have been through both the 8 remaining Generic Issues and Ms Rose’s helpful list of issues derived from the generic pleadings. These lists contain only issues that either: (a) no longer arise; or (b) are the subject of an admission; or (c) will be specifically pleaded in any future individual case in which they will arise if they are to require determination. The allegations of concealment and those contained in paragraph 35A of the revised draft are accepted by the Claimants to be in the third category.

Mr Tomlinson’s next argument is that the Claimants need more generic disclosure in order to show how Mr Mulcaire and NGN operated generally. For this submission, he points to the paucity of documents in individual cases, and says that he will be assisted if he can see a pattern from documents showing a more complete picture in other cases. I can see that it is possible that disclosure of every available document in every case might assist Mr Tomlinson in the way he suggests. But I cannot see that further generic disclosure on the evidence now available to the court (and not prejudging any future applications) would be proportionate or cost effective. To take the second category as an example, NGN’s evidence is to the effect that searching all documents disclosed to the MPS by Linklaters’ criminal team would cost over £500,000, and to search all the PST files manually would cost some £1 million. It is true that electronic searches would be cheaper, but there has to be some balance and proportionality to the exercise.

There are competing factors. On the one hand, the individual Claimant’s cases are small in relative terms (though not small or insignificant to some of the Claimants concerned). The settlements in the first tranche were between £15,000 and £100,000 in most cases. The costs incurred thus far by NGN have been huge; though it is true that few will feel sympathy for NGN on that score bearing in mind that it will be thought to have been the author of its own misfortune.

On the other hand, NGN is part of major international group with huge financial muscle. Moreover, these cases are a matter of national importance and have caused public disquiet and concern on an almost unprecedented scale. They also raise some quite complex issues that need to be resolved properly and fairly as between the parties to ensure that appropriate damages can be awarded in each case. I also accept that NGN can settle the cases as it has sought to do thus far, but if the cases need to be resolved in court, the court cannot be expected to guess the damages that are appropriate, nor to operate in a factual vacuum where outstanding documents are disclosable under CPR Part 31.6.

But I have to consider carefully the provisions of Parts 31.6 and 31.7 and the Practice Direction 31B that I have already set out. I have to consider the purpose for which further generic disclosure is sought and the likely value of that disclosure in addition to the competing features I have mentioned. It seems to me that it is possible that, after many more millions of pounds have been spent, a more complete picture of the modus operandi will be produced. But I am not sure the chances are that good. We know that many documents have been lost and many more have been destroyed. There are few cases where a complete picture is likely to emerge from surviving documents. Inferences will have to be drawn (or refused to be drawn) at trial in most cases, whatever happens. Moreover, there is already quite a good picture emerging of what seems to have gone on. I should say no more about that at this stage.

Having looked at the pleadings, the available disclosure and the admissions in detail, it seems to me that the bulk of any further disclosure should be on a case specific basis. I have formed the clear view that the court will have enough material to do justice even where the case specific information is sparse. I cannot say that perfect justice will be possible, but that may be a counsel of perfection to which we cannot aspire when the CPR specifically enjoins us to be guided by proportionality.

In reaching this conclusion, I am not saying, as Ms Rose submitted at one point that these cases can be decided on the basis of the admissions alone without reference to any documents, nor am I saying that the generic disclosure thus far has been unnecessary. It will help the court draw the right inferences in difficult cases. But the balance seems to me now to lie against further generic disclosure at this stage. I will turn in a minute to deal with the specific categories.

It does not come easily to me, in the light of the history of this litigation to reach the conclusion I have. The history shows that NGN has, even during the course of this litigation, failed to disclose material that ought to have been disclosed, and has been recalcitrant in providing the documents necessary to enable the court to conduct a fair trial. I am not saying that that recalcitrance is continuing. But it has formed the backdrop to these proceedings, and it must also be looked at alongside the admitted destruction of relevant material. I remind myself once again that, had it not been for orders made earlier in this litigation, much of what has now come out might have been successfully concealed forever. But even with all that background it seems to me that, to put it bluntly: you can have too much of a good thing. The value of further generic disclosure in the light of the cost and what is presently available is unlikely to be justified. I nonetheless commend NGN in its agreement to search for the documents in the fifth category, and would urge them to be similarly responsive to future proportionate and measured requests. They will keep well in mind their continuing obligation to make standard disclosure until the cases are determined. That obligation arises generally under Part 31.6. Until liability is admitted and damages are assessed or agreed in a particular case, there are issues outstanding between the parties, and the disclosure obligations survive. The admissions do not, as Ms Rose suggested, supersede the obligation to make standard disclosure, at least generically – because they do not admit each individual claim and the quantum claimed. My decision is, therefore, based on proportionality and the fact that I have concluded that there is already enough generic material to permit a fair trial, so that further huge searches for generic material is not justified. Disclosure in specific cases will be still be required.

It is against that background that I turn to consider the first second and sixth categories in the applications for disclosure made by the Claimants.

Mr Tomlinson submits that the list of areas under this category are intended to focus NGN’s mind in giving future standard disclosure on generic issues. Ms Rose says, in essence, as I have said, that enough is enough.

First, as to the nature and extent of Mr Mulcaire’s unlawful activities prior to 2001 and as to the interception of emails, I am told that there is no individual pleaded case in which such activity is alleged. It, therefore, seems to me, as I have said, that such disclosure cannot be warranted until such a case comes forward.

As for the remaining sub-categories in the first category, they relate to Mr Mulcaire’s dealings with journalists and his activities at relevant times in relation to accessing emails, working with private investigators and obtaining medical and financial information. Some documents are already available, though they are, as I have said, patchy and incomplete. And there are the admissions. These areas, in effect cover the whole case. For the reasons I have given, further generic disclosure is not appropriate at this stage. There is already evidence and admissions that such activities took place in specific cases. And individual disclosure is yet to be provided in most of the second tranche cases. Prime facie, therefore, such documents would be disclosable insofar as it is alleged in any specific cases that such things happened to those Claimants. But that does not mean that standard disclosure in these areas has to be given afresh. One assumes it has already been given, which is how the documents that are available already came to light.

Finally, I should mention the Claimants’ continuing desire to obtain disclosure relating to the lawful activities of Mr Mulcaire. That has been the subject of a rumbling dispute for some time. I have always failed to see why disclosure of material about Mr Mulcaire’s lawful activities (e.g. checking phone numbers in the telephone directory) is disclosable or indeed relevant to anything. Mr Mulcaire must have done many lawful things and what he did in this regard is not going to help the court assess damages in respect of the unlawful things he did.

For these reasons, I am not prepared to order further standard disclosure on generic issues in respect of the matters listed in the first category.

These searches would be very costly, as I have already indicated. This category simply points to some documents that the Claimants think have not been properly searched or should be searched again. For the reasons I have already given, such further searches on a generic basis would not be justified at this stage.

NGN has agreed to look at each of these 9 emails and to disclose any that fall within Part 31.6. The Claimants say that all of them should be disclosed because anything that passed between Mr Mulcaire and NGN is relevant to the overall picture that the court will need to examine to draw the appropriate inferences in a given case. I am inclined to agree. There is nothing disproportionate about this request and I intend to order NGN to disclose all the remaining 9 emails that have been identified. The order will be made under Part 31.12, not Part 31.6.

For the reasons I have sought to give, the amendment application will be resolved by agreement without further amendments being made as follows:-

As regards disclosure, no further standard disclosure on any generic issues will be ordered at this stage. I will accept NGN’s offer to undertake searches for and to provide disclosable documents in the 4^th category, and there will be an agreed order in respect of the 3^rd category of documents sought. I am not saying that no further application for generic disclosure will be possible; circumstances can change, and I am not foreclosing such a possibility.

Now that these specific issues have been disposed of, I should say something about the shape of the proceedings going forward.

I will hear counsel on the form of order, timing issues and costs.