Gulati & Ors v MGN Ltd

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In the present 4 actions the defendants (MGN) have applied for summary judgment on two of them (the Gibson and Flitcroft actions, using the names of the claimants as descriptors) and have further applied to strike out parts of the Particulars of Claim in all four. The defendant has also sought to vary a costs order made by Vos J on the occasion of the first hearing of these applications. This judgment deals with the summary judgment and strike-out applications only.

MGN is a newspaper proprietor whose titles include the Daily Mirror, the Sunday Mirror and the Sunday People. These actions involve claims that the claimants’ mobile phones were hacked by journalists employed by the newspapers, or by third parties acting for the newspapers, the hacking taking the form of listening to voicemail messages in the voicemail boxes without the consent (or knowledge) of the respective claimants, with the result that on occasions newspapers were able to publish stories about the private lives of the claimants or others which they would otherwise not have found out about or been able to verify. It is said that that activity infringes the privacy rights of the various claimants. I set out the details of the various claims, so far as relevant, below.

The actions were all started on 22^nd October 2012. The applications in this case were made in notices dated 26^th February 2013 and first came on before Vos J in April 2013. On that occasion it was adjourned for reasons that are in dispute in this application (the dispute is said to go to the costs order which should be made in relation to that hearing) and was to come back in July. There was a problem with counsels’ availability in July, and it was adjourned over to this month (October 2013). Service of the Particulars of Claim is all that has happened in these cases; they have got no farther than that, and in particular Defences have not been served.

All 4 claims are based on claims that mobile phones of the respective claimants were hacked by persons working for the defendants. The cases all rely on articles that are said to have been published as a result of the hacking, both as evidence of the hacking (it is said that hacking is the most likely source of the story and therefore demonstrates that it occurred in relation to the claimant’s phone) and as material on which damages should be based (at least in part). However, none of them pleads direct evidence of hacking in their particular cases in the sense of direct first hand evidence or records of particular hacking events. Instead, the Particulars of Claim propound a claim based on inference from

The structure of each Particulars of Claim is as follows:

Many of these were not in dispute, and I can summarise them as follows. In relation to summary judgment applications the position is as follows.

Mr Desmond Browne QC, for MGN, submitted that a case should not be allowed to go for trial simply because it is asserted that some further evidence may turn up. In support of this submission he relied on ICI Chemicals v TTE Training [2007] EWCA Cv 725 at paras 12 to 14. He is right that a view to that effect was expressed by Moore-Bick LJ in that case but care must be taken in applying that view to a case such as the present. In that case Moore-Bick LJ was dealing with an argument that further facts might turn up which would affect the construction of a commercial document. He expressed the view that a submission that something might emerge should be treated "with caution", not that it should be rejected out of hand. Paragraph 14 of his judgment makes it clear that he is seeking to distinguish between real and fanciful prospects of success. That is the real distinction, in my view. He was also not dealing with the familiar case in which a claimant makes an ostensibly sustainable allegation but acknowledges that the process of disclosure is necessary to make the case stronger or to have it investigated properly. It is a familiar state of affairs that a claimant is ultimately reliant on disclosure from the other side in order to bring his case home, particularly in cases where the nature of the wrong is such that the defendant’s activities were covert so that, if the case is good, the defendant is likely to have a substantial amount of material in its hands with no equivalent in the hands of the claimant. Unless the prospects of getting disclosure are "fanciful", the claimant is generally entitled to maintain its case in those circumstances. That is not to say that claimants are entitled to embark on speculative cases in the hope that disclosure will throw up something useful. The claimant must have more than that to start with, but the inability to make a full case without disclosure is not, in my view, a bar to starting the litigation in the first place.

The true position is reflected in Doncaster Pharmaceuticals v The Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63:

“17.

It is well settled by the authorities that the court should exercise caution in granting summary judgment in certain kinds of case. The classic instance is where there are conflicts of fact on relevant issues, which have to be resolved before a judgment can be given (see Civil Procedure Vol 1 24.2.5). A mini-trial on the facts conducted under CPR Pt 24 without having gone through normal pre-trial procedures must be avoided, as it runs a real risk of producing summary injustice.

18.

In my judgment, the court should also hesitate about making a final decision without a trial where, even though there is no obvious conflict of fact at the time of the application, reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case.”

The present cases are capable of falling into the category of cases which require full investigation. Provided that there is enough to prevent them falling into the category of the purely speculative, the nature of the wrong or alleged is such that the claimants will or may have little knowledge and evidence of their own at this stage and will need the benefits of pre-trial procedures in order to add to their case. There is nothing wrong with this. It is what disclosure (among other steps) is for. The alleged activities in this case were covert and, of their very nature, would be activities of which the victims would know little or nothing. Better evidence of what happened would lie with the defendant. There is nothing wrong with pleading a starting point, on an appropriate basis, and then expecting the case to become clearer after pleading and disclosure (if not the extraction of further information pursuant to a request).

So far as the striking out of specific parts of the Particulars of Claim is concerned, Mr Browne relies on the material as disclosing no reasonable grounds for bringing the claim, an averment that they are an abuse of the process, and says that there is no real prospect of succeeding on the allegations in question. That is the wording of the rule (CPR 3.4(2)). He seeks to apply these principles to the pleaded claim in the manner identified below. However, in the course of so doing he also relies on principles applicable to proof of matters relating to dishonesty and criminality. He points to the well-known principle that the more serious the allegation, the stronger evidence required to prove it (Re H (Minors) [1996] AC 563) and goes on to say that those principles should apply where the case relied on involves criminality (which in this case it does, or may). He relies on Lord Hobhouse’s speech in Three Rivers at paragraphs 160-161 in which he reflects on the case that has to be established, and pleaded, if there are allegations of dishonesty. Mr Browne relies on what is said there in support of a series of propositions which he says apply in the present case - where an allegation of dishonesty or criminality (my emphasis) is made, there must be a proper basis of making the allegation; a party alleging dishonesty must be prepared to particularise the case; the pleaded case must be more consistent with the existence of dishonesty or criminality than with its non-existence; the party making the allegation of dishonesty must be prepared to particularise it; and the allegation of dishonesty made in the pleading must be made on the basis of evidence which will be admissible at trial.

Those propositions are not all justified by what Lord Hobhouse said, and they are not all applicable to the present case. Lord Hobhouse was referring to cases where dishonesty was alleged as part of the cause of action. The present action is not such a case. Mr Browne equates a case of criminality with cases of dishonesty. That is not a necessary equation. The present case is not one in which the cause of action is couched in dishonesty, or is one which involves a particular state of mind. It is based on acts which are said to be a civil wrong, and which also happen to be a criminal offence. It is not appropriate to impose the strict requirements applicable to fraud cases to all cases involving criminality. It is the quality of the allegation that is important, not whether or not it is also criminal. Furthermore, nothing that Lord Hobhouse said requires the approach of Mr Browne, which was to look at each piece of pleading in this case separately and consider whether, as a separate piece of pleading, the facts were no more consistent with the conduct ultimately complained of being wrongful than its being lawful. Whatever may be the case in cases involving a dishonest (or malicious) state of mind, it is appropriate to plead matters which might separately be insufficient to prove a given state of mind and invite the court to view the evidence in its totality as proving what the pleader sets out to prove. Various pieces of evidence have (or may have) to be viewed in the light of, and not entirely separate from, other pieces of evidence for these purposes.

Mr Browne also relied on Telnikoff v Matusevich [1992] AC 102 as justifying his approach of dissecting, scrutinising and discarding until there is nothing left. That was a case which considered the proof of malice in a libel case. Whatever might be appropriate in cases of this sort, the present case is not one of those cases. The question is whether phone messages were listened to by unauthorised people. Malice, or a dishonest state of mind, is not relevant. It is a question of fact.

Other legal points raised by the parties will be dealt with in the context in which they arise.

This point also concerns paragraph 4, but the real thrust of it is aimed at paragraph 5.

This point is important to all 4 claims. It is said they should stand or fall on their own merits, on the basis of their own particularly pleaded facts, without the contents of paragraph 5. Mr Browne mounted a detailed and general attack on all the paragraphs of Schedule 5, and certain additional matters relied on in evidence served in answer to the application, saying that those matters ought not to be pleaded and could not be relied on at trial. Putting the matter shortly his attacks were as follows:

The first head gathers together complaints which are essentially complaints about relevance and admissibility - this encapsulates matters (i), (v), (ix), (xi), and (xii). This head depends on looking at the quality of the material and, in essence, saying that the facts pleaded add nothing relevant or probative to the particular claims of the claimants. In particular it is said that the pleading of a general pattern of behaviour is of no relevance when assessing whether phone hacking occurred in the particular cases. In those cases the court will be faced with an inquiry as to what actually happened in those cases, and whether the source of the stories of which complaint is made was phone messages left on the claimants’ phones or some other source. What might or might not have happened in other instances is irrelevant to that.

I disagree with that analysis. This is a point about similar fact evidence. In O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534 the House of Lords considered the admissibility of material described as similar fact evidence in that it was instances of improper behaviour on the part of police officers said to be similar to the actual behaviour of which complaint was actually made. There are plain parallels with paragraph 5 in the present case. Lord Bingham considered similar fact evidence generally and said:

“4.

That evidence of what happened on an earlier occasion may make the occurrence of what happened on the occasion in question more or less probable can scarcely be denied. If an accident investigator, an insurance assessor, a doctor or a consulting engineer were called in to ascertain the cause of a disputed recent event, any of them would, as a matter of course, enquire into the background history so far as it appeared to be relevant. And if those engaged in the recent event had in the past been involved in events of an apparently similar character, attention would be paid to those events as perhaps throwing light on and helping to explain the event which is the subject of the current enquiry. To regard evidence of such earlier events as potentially probative is a process of thought which is an entirely rational, objective and fair-minded person might, depending on the facts, follow. If such a person would, or might, attach importance to evidence such as this, it would require good reasons to deny a judicial decision-maker the opportunity to consider it. For while there is a need for some special rules to protect the integrity of judicial decision-making on matters of fact, such as the burden and standard of proof, it is on the whole and desirable that the process of judicial decisionmaking on issues of fact should not diverge more than it need from the process followed by rational, objective and fair-minded people called upon to decide questions of fact in other contexts where reaching the right answer matters. Thus in a civil case such as this the question of admissibility turns, and turns only, on whether the evidence which it is sought to adduce, assuming it (provisionally) to be true, is in Lord Simon's sense probative. If so, the evidence is legally admissible. That is the first stage of the enquiry.

5.

The second stage of the enquiry requires the case management judge or the trial judge to make what will often be a very difficult and sometimes a finely balanced judgment: whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. ...”

He goes on to consider various case management-related matters which might go to allowing or rejecting the evidence. At paragraph 52 he rejected the idea that in civil litigation there should be any test based on whether the evidence is sufficiently probative (applicable in criminal proceedings) and at paragraph 53 said:

“To do so [ie to apply the “sufficiently probative” test] would build into our civil procedure an inflexibility which is inappropriate and undesirable. I would simply apply the test of relevance as the test of admissibility of similar fact evidence in a civil suit. Such evidence is admissible if it is potentially probative of an issue in the action.”

Those are the principles which are applicable to the present case.

Applying them to the criticisms that are made of paragraph 5, and viewing the pleadings as relating to evidence that would in due course be sought to be led, it is immediately clear that the criticisms are, on the whole, ill-founded. Many of the criticised paragraphs relate to matters which are plainly capable of being relevant to the particular hacking claims relied on by the individual claimants. Most of the sub-paragraphs are references to the knowledge in the industry (and some in Mirror Group titles) of the ability and propensity to hack phones, some sub-paragraphs actually referring to listening to messages. Indications by an editor that that has gone on in some cases would seem to me to be relevant to a claim that it had gone on in different case. Any “rational, objective and fair-minded person” might come to the conclusion that it is relevant to any particular cases that this sort of conduct has gone on in relation to others. It does not prove it in any particular cases, of course, but it would be wrong to exclude evidence of those similar fact matters (which is in substance what Mr Browne invites me to do), at least at this stage in the action.

Weight is, of course, a different matter. So is case management of the issue. One point touched on in argument was how disclosure was to be handled in the face of broad-based allegations of phone hacking in a lot of other cases. That is an important point. For example, at first blush it would seem to be excessive to order disclosure in relation to all stories about private lives of celebrities to see how many involved phone hacking sources. Some controls would have to be put on that exercise. But that is a case management issue, not a relevance or admissibility issue.

The attack based on the evidence being inadmissible similar fact evidence therefore fails.

Points (ii) and (iii) are no reason for striking out these paragraphs. It is not of the essence of a claim based on vicarious liability that the individual perpetrator has to be indentified at a trial, much less at the pleading stage. A claimant who is run over by a van whose owner can be identified does not necessarily have to identify the precise driver. Thus the identity of the actual perpetrator of the phone hacking exercise in the present case (assuming there to be one) does not have to be identified at this, or perhaps any, stage, though of course the inability to identify one may go to the weight of the evidence that there was any hacking at all. Nor does the pleading raise an insuperable difficulty of attribution of knowledge where it may be split across several individuals rather than being present in one. Those considerations are relevant to such elements of a claim as malice or dishonesty, but those are not elements of the claim in the present case.

There is nothing in (iv). The pleading relies on the movement of journalists between titles (inside and outside the Mirror group) and the transfer of knowledge and use of skills on various papers. That is plainly potentially relevant.

(vi) is an attempt to discredit a witness, or a piece of hearsay material, at far too early a stage in the action. It may be that there are reasons for challenging the credit of some of the individuals referred to in the pleading, but that sort of consideration has to await a trial. It is inappropriate to apply that sort of attack to a pleading of particulars in Particulars of Claim. In any event, this is a pleading, not a witness statement. What is important is that it is an indication of material that indicates wrongdoing. It is a perfectly acceptable form of pleading.

(vii) relies on correspondence to make it good, as appears from the description of the point. There is nothing express in the pleading which seeks to reverse a burden of proof, and nothing implicit either. The letter to which I have referred offers a challenge, but does not reflect any shift in the burden of proof, which plainly lies with the claimants. Of course, a failure to proffer an alternative source when challenged may, or may not, be significant in evidential terms, but even if it is significant it does not amount to some sort of shift in the burden of proof.

As to (x), criminality may mean that the conduct alleged acquires an even greater degree of seriousness when considering whether the allegation in question has been proved, though the allegations in this case are already pretty serious. However, that consideration arises in considering the weight of evidence at the end of the day, not the weight of a pleading. It may be that one might have a case which is so thinly pleaded in an area of dishonesty that an attack on it might be supported by the principles in Re H, but if it is possible to have such a case the present case is not an example. The point has nothing useful to say on the sustainability of the present pleading.

Part of the impact of point (xiii) is dealt with already in considering the “similar fact evidence” point above. All the material seems to me to be potentially relevant, though weight is another matter. Furthermore, one has to bear in mind that at the stage of pleading a claimant is giving such particulars as can be given at that stage. Under any given head the evidence may improve. So far as the pleading refers to documentary evidence which cannot presently be produced, one has to wait and see what evidence is in fact available at the trial. So in relation to the report that is referred to in paragraph 5(q), that report may become available in due course. If not, then the quality of the newspaper report about it may have to be considered if it is introduced in evidence. It is far too premature to be considering such questions of admissibility and weight at this stage and in this context.

(xiv) is an inaccurate description of the task set by the pleading. It does not require the proof of a negative. It is an averment of a positive the burden of which is on the claimants. The defendant may or may not seek to meet this point at trial by its own evidence that there was no such practice as alleged, but that does not mean that it has to prove its absence.

Last there is the criticism under head (xv). In opposition to the application Mr Heath, the claimants’ solicitor, filed evidence about further inquiries, on-going police investigations and further disclosure that might become available from police investigations. Norwich Pharmacal disclosure is being obtained from the Metropolitan Police Service, which is known to have commenced an investigation into activities at Mirror Group newspapers. Mr Browne characterises this evidence as an indication that the claimants hope that something will turn up to support their cases, and says that that is not a proper approach to litigation. I agree that a hopelessly pleaded case can probably not be rescued by a mere hope that something will turn up on an investigation. But that description mischaracterises both the nature of the pleaded case and the nature of Mr Heath’s evidence. The present case is sustainable as a pleading, and Mr Heath’s references to developments since the pleading, and potential future developments, indicate that it might get better. If he is right then the claimants’ position will be improved. If he is wrong then it will not be improved, but they still have their respective cases which, so far as this part of the attack is concerned, are sustainable enough to survive this attempt to strike out.

That leaves (viii). This does not relate to a pleaded matter, so it does not really have to be dealt with, but I would merely observe that in this respect the defendant has a point. The arrest of journalists or company officers is not evidence of anything relevant to the present case. It does not improve the case that is pleaded, because it does not provide any evidence of anything useful. If such matters had been pleaded I doubt if I would have allowed them to stand, but they are not so the point does not arise.

It follows from the above that the strike-out attack on paragraphs 4 and 5 of each of the Particulars of Claim fails.

The attack on the Flitcroft case is a summary judgment application mounted on the footing that there is sufficient evidence to demonstrate that this case has no real prospect of success.

Mr Flitcroft’s pleaded case is shortly expressed, and its expression is short enough to enable it to be conveniently set out in Appendix 2 to this judgment. It will be seen that it starts with the publication of an article in The People about a relationship that Mr Flitcroft had with a Miss James, pleading that at the time the defendant said that it had encountered Miss James through normal investigative journalism. However, based on the pleaded material Mr Flitcroft’s case is that it is be inferred that in fact it tracked down Miss James through phone hacking (it “encountered Miss James through a process involving phone hacking”), not “normal” investigative journalism. Thus the publication of the article is said to be both evidence of phone hacking and at least some of the damage.

The defendant’s attack on this case at this stage is evidence-based, and it prompted an evidential response. The elements of the evidence are as follows:

Based on that material, Mr Browne says that the case of Mr Flitcroft is fundamentally flawed. The newspaper has demonstrated, with documentary evidence, how it came into contact with Miss James, and how it discovered the Flitcroft story from her. Phone hacking had no part to play in the story, and there is no evidence of it. Mr Flitcroft’s versions of events are riddled with inconsistencies. His early evidence was inconsistent with information acquired through hacking, and his later attempts to save the position should be regarded as worthless. His inconsistencies doom his case. Furthermore, unlike some claimants (including Mr Eriksson and Ms Gulati) Mr Flitcroft has not been approached by the Metropolitan Police with an indication that he might have been the victim of hacking. All in all his case has no real prospects of success.

I have already identified the authorities which indicate that the court should not conduct a mini-trial on applications such as this. It will be apparent from the evidential narrative above that on one view that is what has happened. But the label to be applied to the exercise is not as significant as the result. If as a result of the material deployed by the defendant, taking into account the counter-material deployed by the claimant, it is apparent that the claim has no real prospects of success then the court should strike it out.

I agree that some significant blows have been landed on Mr Flitcroft’s case but I do not agree that they have destroyed it to such an extent that his case has no reasonable or real prospects of success, or that he has no reasonable or real claim, for the purposes of summary judgment. His evidence has been inconsistent, but not to the point where it can be judged now to be worthless. Evidence given at a time when phone hacking was not known about as a source of information may be based on assumptions which are different from those which would be made now. There remain indications from the women themselves which are consistent with Mr Flitcroft’s present case - Miss James said the newspaper contacted her about the relationship and not the other way round, and Miss Hammond gave evidence inconsistent with the suggestion that she identified Miss James to The People. Even if it is the case that Miss James was in contact with Miss Cock for two years before the story was broken it does not follow that Miss James informed Miss Cock about the relationship unprompted. On any footing she kept it from the paper for some time, and the real question is what prompted her to speak about it. If the point did not originate from her then from where did it come? On the current evidence Miss Hammond cannot have been the prompt - her evidence at the time was that she did not know Miss James’s identity. Miss Cock’s note suggests it was indeed Miss James who raised the topic, but that is not so compelling that it has to be accepted as true at this stage. This question is one to which the answer is not clear, or clear enough for the defendant’s purposes, on the paper evidence that I have seen. Mr Flitcroft has a real prospect of establishing that phone hacking played its part, perhaps by being a prompt which led Miss Cock to raise the point with Miss James. More than that cannot be said, but it is enough. The case will be clarified by disclosure and other pre-trial processes, and in the end may well turn on cross-examination in the normal way.

This summary judgment claim therefore fails.

Miss Gibson was formerly the nanny to David and Victoria Beckham, a well-known celebrity couple in whom the tabloid press have shown huge interest over the years. She was dismissed by them in 2005 and not long after that she gave a story to the newspapers revealing details of the Beckhams’ private lives. They commenced proceedings against her based on duties of confidentiality and obtained interim obtained injunctive relief. On 12th July 2005 the People published a story to the effect that David Beckham had been plaguing Miss Gibson with a series of abusive messages left on the voicemail on her mobile phone. Miss Gibson’s case in this litigation is that that story was published as a result of someone on behalf of the newspaper listening to the messages on her voicemail without her consent or knowledge. She sues accordingly. Her pleading relies on a conversation that she had with a People journalist before the publication in which he told her that he knew they had left messages. The pleading appears in Appendix 3 to this judgment.

The defendant seeks summary judgment on this claim on the footing that it has no real prospect of success when one looks at the available evidence. The main thrust of the attack is based on statements made in open court to settle litigation. When the article was published David Beckham denied the claims and immediately threatened libel proceedings. The matter was settled quickly (Mr Sherborne, who appears for the claimants, submits it was astonishingly quickly) and on 3rd August 2005 a joint statement was read in open court. In that statement the newspaper acknowledged the untruth of the story. It said that David Beckham had not made any telephone call of the sort described in the article and had not spoken to Miss Gibson since she had resigned her employment.

The breach of confidence proceedings against Miss Gibson were settled in July 2009, on which occasion the Beckham’s solicitor made a statement in open court. He said:

“On 10 July 2005 The People newspaper published an article entitled “Exclusive - Beckham’s Hate Calls to Nanny” which falsely stated that David Beckham had made a number of insulting and threatening telephone calls to Abbie Gibson. The People have already apologised for making this false and defamatory claim and have paid damages to David Beckham. Ms Gibson is happy to confirm that David Beckham did not at any stage make any such telephone calls to her. She apologises if anything she said to The People gave them a false impression that such calls had been made.”

Via her lawyer, Miss Gibson confirmed in a statement in court that she

“ … wishes to use this opportunity to confirm that Mr Beckham has not made any rude or threatening telephone calls to her.”

This material is relied on by the defendant as establishing that Miss Gibson plainly did not receive any calls from Mr Beckham, so the source for the story in the paper cannot have been messages left on her phone; therefore there was no phone hacking and that crucial evidential link in Miss Gibson’s case is missing.

So far as the effect of the statements in open court go, Mr Browne relies on Adelson v Associated Newspapers [2008] EWHC 278 in support of his position. In that case a tension arose in a libel action between a pleaded, and maintained, case of justification on the one hand and an offer of a statement in open court, as part of settlement proposals, on the other, where the statement professed a belief that the defamatory remarks were false. In the context of considering a stay application Tugendhat J had to consider whether the court would allow the statement to be read. He concluded that it would not (on the facts of that case):

“69.

The court will normally give permission for the Statement to be read ... It may be that on occasions in the past parties have made Statements in Open Court which one (or even both) do not believe to be true, or know to be false. If that fact does not come to the attention of the judge before the Statement is read, then he will be likely to grant permission. No case has been cited to me where the judge had to consider a statement by a party which that party was asserting to be false.

70.

In my judgment the judge will not give permission for a Statement in Open Court to be read if, before the Statement is read, he is informed by one of the parties that that party proposing [sic] to join in the making of a statement which he believes to be false. It is one thing for the court to be unable to guarantee that all its judgments or verdicts are the whole truth. It is quite another for the court to permit itself to be used for the making of a statement that the maker is at the same time declaring he believes to be true.”

Mr Browne does not use that case to found some sort of estoppel against Miss Gibson, but he submitted that it came as close to estoppel as made no difference when it came to credibility. In other words, he was submitting that the making of the statement is so strong a blow as to Miss Gibson’s credibility that she cannot succeed were she to seek to say, at a trial, that there were indeed offensive messages in her voicemail box.

Further evidence is relied on.

This conversation is said to be inconsistent with the evidential case which Miss Gibson now advances, to which I now turn.

Miss Gibson’s case, put forward in witness statements, is to the following effect.

She explains the statement in open court as being something she was prepared to give because she regarded it as literally true - she had never listened to voicemail messages from David Beckham and so considered that he did not make calls to her that she would regard as insulting or threatening. She was prepared to say what she said, and was motivated by a desire to settle her case.

In a second witness statement she refers to a telephone call that she had with her solicitor (and exhibits the attendance note) at the time of the call from Mr Harpin in which she told him that The People was going to run the story the next day and she was not the source. Her solicitor spoke to Mr Harpin who confirmed that his source was not Miss Gibson, “nor was it from someone who had obtained the information from Abbie either directly or indirectly”.

Mr Browne points to what he says are the inconsistencies in Miss Gibson’s account. She did not say to Mr Harpin that she had stopped listening to voicemails, but did not contradict Mr Harpin, thereby confirming his story, as she also did later in the conversation. Then she rejected the idea that she had received abusive telephone calls. There was equivocation as to whether she did or did not receive calls, as opposed to messages, and in the telephone conversation she herself pointed out the unlikelihood of the Beckhams leaving voicemail messages whose content could be used against them.

Looking at all the evidence, and taking into account the fact that as with Mr Flitcroft Miss Gibson has not been told by the police that there is evidence of hacking, Mr Browne submits that her case is so fatally flawed evidentially that it cannot be said to have any real prospect of success. If the matter were to go to trial Mr Beckham would be required to give evidence and he would clearly say he made no calls, and there would be no basis to challenge that evidence. If (when) it was not challenged the only evidential link that Miss Gibson has to phone hacking would be destroyed, and she would have no case. She herself would not be able to say that there ever were any voicemail messages.

Last, since she never listened to the voicemails (on her own evidence) no damage has been sustained.

Mr Sherborne disputed this analysis. He points out that the evidence demonstrates clearly that she was not the source of the story. That is her evidence; Mr Harpin said they had another source, and it is plain that the newspaper already had the story before Mr Harpin called her. He already knew about nasty messages and appeared confident about his source (as indeed he must have been if he was going to publish without her confirmation). She did not herself give a clear confirmation - she was being cagey (she was the subject of a confidentiality injunction at the time). It is therefore quite plain that the newspaper considered it had a solid source. It is striking that in this instance (contrast the Flitcroft case) the newspaper has not even said in these proceedings that it had a source other than phone hacking. There was evidence of suspicious activity in relation to Miss Gibson’s voicemails and the statement in open court was literally true and its impact was a question of credibility and not determinative as to whether she would be believed at the trial. Adelson is about a different point. It does not require the court to assume, for present purposes, that the contents are true in a manner which binds Miss Gibson now. In his material Mr David Brown had given strong indications which supported Miss Gibson’s case, including a suggestion as to the reasons for the very speedy settlement of the Beckham’s claim. The pleading of general practices about phone hacking was material in assessing the probabilities of hacking being a source. If there was hacking there was real damage, and Mr Sherborne pointed to Mosley v Newsgroup Newspapers Ltd [2008] EWHC 1777 (QB).

Again, it might appear from the above argument that there was something of a mini-trial on this point, but again the label is not so important as the result of the debate. If it can in

I therefore find that, while weakened, the case of Miss Gibson is not so impoverished as to require me to say that it has no real prospect of success. The normal processes of the action, and in particular disclosure, will reveal a fuller and more reliable picture. This does not mean that the claim of Miss Gibson is based on impermissible Micawberism. It means that she has an apparent case with real (certainly not fanciful) prospects of success; like other phone hacking cases, it is a case which in its initial phase is one based on inference because the real relevant material is more likely to be in the hands of the defendant (because of the nature of the complaint) and which it is right should be allowed to proceed so that the full material can be made to emerge. It is not a case built on hopeless inference or hopeless speculation and such difficulties as are apparent in the case (which are, admittedly, significant) are not so serious as to require the conclusion that it is doomed to failure. In the words of the authorities, the case is not one of “no real substance”, and it is not “inevitable” that it will fail.

It follows that the applications by the defendant to strike out, or for summary judgment, fail.

It is the Claimant’s case that journalists employed to work on the Defendant’s newspapers:

Pending disclosure and the provision of Further Information, the Claimant will rely upon the following facts and matters in support of the general allegation that the Defendant habitually used phone hacking techniques and call data blagging to obtain or to verify the accuracy of stories for publication in the Defendant’s newspapers:

Around April 2001, journalists on the Defendant’s People newspaper became aware of a story involving a sexual liaison between Garry Flitcroft, a married man and Captain of Blackburn Rovers football team, and one Helen Hammonds. Around the time that it became aware of that story, it made contact with one Pamela James, a lap dancer practising in Manchester, who had also had an affair with Garry Flitcroft, and who was persuaded to tell her story in salacious detail to the People. At the time the Defendant contended that it had encountered Miss James through normal investigative journalism conducted by one Miss Cock, the People’s lap-dancing correspondent. It is to be inferred from the following facts and matters, however, that in fact it encountered Miss James through a process involving phone hacking:

Abbie Gibson had been in 2005 a nanny to the children of David and Victoria Beckham. On 10 July 2005 the People published an article entitled “Beckham's Hate Calls to Nanny". The story appeared shortly after an injunction had been granted against her in favour of the Beckhams, on the basis of alleged disclosure of private information about the Beckhams. A People journalist called Lee Harpin telephoned Miss Gibson and told her that he knew that the Beckhams had been leaving messages on Miss Gibson’s mobile phone. Miss Gibson did not respond substantively because she was concerned about the possibility of breaching the injunction against her if she said anything of substance. She did not tell Mr. Harpin that the Beckhams’ messages had been threatening or abusive. In due course the relevant story appeared in the People. According to the witness statement of David Brown referred to above, Miss Gibson was one of the people whose phones he knew had been hacked. The Claimant asserts, therefore, that the reason why Mr. Harpin knew that the Beckhams had been leaving messages on Miss Gibson’s phone was that he (or someone else acting on behalf of the People) had been hacking into her phone messages and listening to them.