Baroness Lawrence of Clarendon OBE v Associated Newspapers Limited

This judgment is divided into the following sections:

These seven Claimants have brought six separate claims. In summary, they allege that each of them has been the subject of unlawful information gathering by the Defendant (“Associated”). They claim that Associated has obtained their private and/or confidential information using techniques such as interception of voicemail messages, listening into live telephone calls, obtaining of information by deception, and the use of private investigators (“Unlawful Information Gathering”). Once obtained, the Claimants allege that Associated has used this information to publish articles in the Daily Mail, The Mail on Sunday and Mail Online. The Claimants seek remedies for misuse of private information. Associated denies the Claimants’ allegations.

The Claimants are all notable public figures who probably need no introduction. Baroness Lawrence is the mother of Stephen Lawrence, who was murdered in a racist attack in London. She is a member of the House of Lords. Ms Hurley is an actress and businesswoman. Sir Elton John is an internationally acclaimed recording artist and Mr Furnish, his husband, a well-known film producer and director. Sir Simon Hughes is a former Liberal Democrat politician, who was Minister of State for Civil Justice and Civil Liberties between 2013-2015. Prince Harry, the Duke of Sussex is a member of the Royal Family. Finally, Ms Frost Law is an actress, director, producer, businesswoman and fashion designer.

Associated is the publisher of the national newspapers, The Daily Mail and The Mail on Sunday, and of the global website MailOnline. Articles published by Associated, whether in the print editions of its newspapers or online, will be read by millions of people within this jurisdiction and beyond.

The Claim Form in each action was issued on 6 October 2022. Details of the Claimants’ claims are set out in Particulars of Claim in each action. Under the heading “Overview of the Claimant’s claim”, each Claimant pleads as follows:

Thereafter, the structure of each Particulars of Claim is similar, with the core allegations being made, in the same terms, in each Particulars of Claim.

In broad terms, each Claimant advances a generic case (common to all Claimants) as to the use of Unlawful Acts to gather information for publication and relies on a largely (but not exclusively) inferential case that the identified articles represent the fruits of Unlawful Information Gathering. The Claimants seek common remedies against Associated of damages and an injunction. In support of this, each Claimant contends that s/he “has suffered considerable distress and harm, as well as the loss of [his/her] dignity or standing and [his/her] personal autonomy through the Unlawful Acts, its resultant invasions of [his/her] privacy, and its deliberate exploitation and/or misuse of [his/her] unlawfully or illegally obtained information in the Unlawful Articles”.

Associated has not yet filed a Defence to the claim. It has not, even, filed an Acknowledgement of Service. Instead, on 4 November 2022, Associated issued an Application Notice seeking orders that no copy of the Particulars of Claim should be provided (or made available) from the Court File to a non-party, and that the time for Associated to file an Acknowledgement of Service should be extended until further order of the Court. In ordinary course, once an Acknowledgement of Service has been filed, a statement of case (which would include the Claim Form and Particulars of Claim) would become open to public inspection on the Court File: CPR 5.4C(3). The parties had largely agreed that the Court should make an order in these terms because it was Associated’s intention to make an application challenging the claims brought against it, principally on the grounds that parts of the Particulars of Claim in each action included material that had come from documents from the Leveson Inquiry that were the subject of continuing restrictions.

I made an Order, on 8 November 2022, which restricted non-party access to the Particulars of Claim pending an application by Associated to challenge the Particulars of Claim. I set a timetable for the issuing of any application and gave directions for the parties to file any evidence upon which they wanted to rely. The order made clear that any application by Associated must include all bases on which Associated sought to challenge the Particulars of Claim. It was clear from pre-action correspondence that Associated had raised limitation as a ground on which it would seek to challenge the Claimants’ claims.

Associated issued an Application Notice on 5 December 2022 (“the Restriction Order Application”). It sought the following orders:

In the supporting witness statement, Ms Banno indicated that Associated intended to issue a further application seeking summary judgment on the Claimants’ claims on the grounds of limitation. It was apparent that Associated had envisaged there being two hearings. First a hearing concerning the alleged breach of the Restriction Orders and then, subsequently, a further hearing to determine Associated’s further summary judgment application.

The suggestion of two hearings was not sensible. It risked delay and potentially two appeals to the Court of Appeal. On 20 December 2022, having considered the written representations of the parties, I made an order that required Associated to issue the summary judgment application by 20 January 2023 and gave directions for a 4-day hearing to be fixed to deal with both applications. This hearing was ultimately fixed for 27 March 2023.

Associated duly issued a further Application Notice, on 20 January 2023, seeking orders: (1) striking out the Particulars of Claim pursuant to CPR 3.4(2)(a) and/or CPR 3.4(2)(b) on the grounds that “because the claim is time-barred pursuant to section 2 of the Limitation Act 1980, the statements of case disclose no reasonable grounds for bringing the claim and/or that they are an abuse of the court’s process or are otherwise likely to obstruct the just disposal of the proceedings”; and/or (2) granting summary judgment in favour of Associated on the grounds that, because of the limitation defence, the Claimants had no real prospect of succeeding with the claim and that there was no other reason why the matter should be disposed of at trial (“the Limitation Application”).

Broadly, therefore, the challenges made by Associated to the claims are on the grounds (1) that the acts complained of by the Claimants are now time-barred and the Claimants have no real prospect of defeating the limitation defence; and (2) that the Claimants have breached restrictions imposed by the Leveson Inquiry by using documents the subject of restrictions – the Ledgers (see [34] below) – to plead their Particulars of Claim.

Separately, by a further Application Notice dated 20 January 2023, Associated sought the following orders restricting the information that was made publicly available in the proceedings and corresponding reporting restrictions (“the Reporting Restriction Application”):

After hearing representations at the hearing of these applications, including submissions on behalf of several media organisations and from the Online Publisher, on 27 March 2023, the first day of the hearing, I imposed temporary reporting restrictions. I gave a short extempore judgment summarising my reasons. In Section I of this judgment, I set out the basis of my decision (see [319]-[333] below). The material parts of the Order provided as follows:

As a result, in this public judgment, the names of the Anonymised Journalists, referred to in the evidence, have been replaced with a cipher (JXX, where XX is a number). For similar reasons, although I have imposed no further reporting restriction order, I have omitted (or used further ciphers for) the names of various other third parties in this judgment. I have done so, reflecting a basic principle of fairness, because these third parties (about whom allegations have been made) have had no fair opportunity to defend themselves. It would not be right, in a public judgment at this very early stage, when the Court is not adjudicating on the truth or otherwise of various allegations, to name people alleged of wrongdoing. I fully anticipate that, subject to any future applications that may be made, the names of those who have been omitted from this judgment will enter the public domain at some point if this action goes further. Even where I have named people – for example because they have voluntarily provided witness statements – it must be understood that the Court is dealing only at this stage with allegations. The Court is not adjudicating upon the truth of any of the allegations made against various individuals at this stage.

In order fully to understand the arguments made by the parties in relation to the two substantive applications made by Associated, it is necessary for me to set out some of the relevant history, including events up to and including the Leveson Inquiry. It is part of Associated’s case on limitation that the widespread use of private investigators by various newspaper publishers was well-known well before the Leveson Inquiry.

Operation Motorman and the Information Commissioner

In 2003, investigations by the Information Commissioner’s Office (“the ICO”) and the police, under the title “Operation Motorman”, led to a raid on the premises of an enquiry agent, Steve Whittamore. In April 2005, at Blackfriars Crown Court, Mr Whittamore pleaded guilty to obtaining personal data, contrary to s.55 Data Protection Act 1998. The prosecution’s case was that he had passed personal information to journalists, including information obtained from the police national computer. Mr Whittamore was given a 2-year conditional discharge. At the time, the maximum penalty for the offence was a fine. Media reports claimed that Mr Whittamore had been used by several newspapers, including Associated titles.

Subsequently, in 2006, the ICO published two reports. The first – “What Price Privacy? The unlawful trade in confidential personal information” – was published on 10 May 2006. The following paragraph, from the executive summary, gives a flavour of the ICO’s findings:

Dealing with the print media’s role in what was described as this “unlawful trade”, the ICO reported:

The second ICO report – “What price privacy now?” – was published on 13 December 2006. It contained further information derived from documents seized during “Operation Motorman”. The report included a table showing the number of transactions that the ICO had positively identified as having involved newspapers and magazines. Associated topped the table, with 952 transactions involving 58 journalists. The ICO noted, however, that, “some of these cases may have raised public interest or similar issues”. In other words, that it was not possible, on the available evidence, to determine whether (and if so, to what extent) any breaches of the Data Protection Act 1998 had been committed. The ICO evidence also did not demonstrate whether the relevant newspaper or journalist was aware that the information had been obtained unlawfully.

Phone-hacking

On 26 January 2007, Clive Goodman, the royal editor of the News of the World newspaper, and Glenn Mulcaire, a private investigator, pleaded guilty to conspiring to intercept voicemail messages. They were given sentences of imprisonment. The then editor of the News of the World, Andy Coulson resigned. He was subsequently arrested on suspicion of phone-hacking on 8 July 2011. In June 2014, Mr Coulson was found guilty of conspiring to intercept voicemails and sentenced to 18 months’ imprisonment.

Civil proceedings for phone-hacking were commenced in April 2011. On 10 July 2011, engulfed by the scandal of phone-hacking, NGN closed down the News of the World. Further civil proceedings, alleging phone-hacking, were brought against MGN, the publisher of various Mirror titles. A lead action – of the claims of 8 claimants – was tried between 2-25 March 2015. MGN had admitted liability in the claims. The judgment on damages was handed down on 21 May 2015: Gulati -v- MGN Ltd [2016] FSR 12.

Establishment of the Inquiry

Responding to public concern about phone-hacking, on 13 July 2011, the then Prime Minister, David Cameron, announced that the Right Honourable Sir Brian Leveson (then a Judge of the Court of Appeal) would be appointed to chair a public inquiry, under the Inquiries Act 2005 (“the Inquiry”). Draft terms of reference of the Inquiry were published at the same time and finalised on 20 July 2011. On 28 July 2011, Sir Brian was formally appointed as chair of the Inquiry, jointly, by then Secretary of State for Culture, Olympics, Media and Sport, Jeremy Hunt MP, and Home Secretary, Theresa May MP.

The Inquiry was intended to have two phases.

Sir Brian Leveson decided that Part 1 of the Inquiry would be split into four separate modules (although he recognised that there was likely to be some overlap): (1) the Press and the Public; (2) the Press and the Police; (3) the Press and Politicians; and (4) the Future.

Under the terms of reference, Part 1 of the Inquiry would address:

Several individuals and organisations were designated as Core Participants for various stages of the Inquiry (pursuant to s.41 Inquiries Act 2005). Those included Sir Simon Hughes, one of the present Claimants, and Associated.

On 26 September 2011, the Inquiry circulated what became the Inquiry Protocol relating to the receipt and handling of documents, including redaction (“the Protocol”). The Protocol noted that there was a presumption (under s.18 Inquiries Act 2005 – see [266] below) that all relevant documents received by the Inquiry would be made public. “This will occur at the appropriate time, having regard to the Inquiry timetable and ongoing criminal investigation” (§11). Until any documents were made public, all information received by the Inquiry was required to be treated as confidential. Before any information was disclosed to any third party, or published, the Inquiry would inform the provider of the information and discuss any amendments, redactions, or summaries of the information (§13). Paragraph 14 provided:

Initial evidence gathering by the Inquiry: s.21 Notices

In August 2011, as part of its initial evidence gathering, the Inquiry sent notices under s.21 Inquiries Act 2005 (“s.21 Notices”) to various individuals and organisations, requiring witness statements and/or the production of documents. (The legal framework governing the Inquiry is set out later in the judgment (see Section H(4) [265]-[270] below)).

On 8 August 2011, several individuals at Associated were sent s.21 Notices requiring provision of a witness statement and/or various documents. Those to whom s.21 Notices were sent included Paul Dacre, the then editor of The Daily Mail; Peter Wright, the then editor of The Mail on Sunday; Elizabeth Hartley, Head of Editorial Legal Services; Kevin Beatty, the then Group Managing Director of Associated; James Welsh, the then Group Finance Director of Associated; Marcus Rich, the then Managing Director of The Daily Mail, and Guy Zitter, the then Managing Director of The Mail on Sunday. Of those individuals, Mr Rich and Mr Zitter were required to produce only identified documents, not a witness statement. One category of documents required to be produced was:

The s.21 Notices sent to Mr Dacre, Ms Hartley and Mr Wright required that his/her witness statement should cover:

On 25 October 2011, Associated submitted the witness statements and documents that it had been required to produce to the Inquiry pursuant to the s.21 Notices. The documents that Associated provided included ledger cards, recording payments to private investigators or other external providers of information, for both The Daily Mail and The Mail on Sunday (“the Ledgers”). In accordance with the Protocol, the Ledgers were assigned the following URNs: TheDaily Mail: MOD100021713-MOD100021793 and The Mail on Sunday: MOD100021683-MOD100021712.

Confidentiality undertaking given by the Core Participants

On 1 November 2011, the Inquiry sent a confidentiality undertaking that each Core Participant was required to sign (“the CP Undertaking”). The CP Undertaking was in the following terms:

It is common ground that Sir Simon Hughes, David Sherborne, Counsel, and Mark Thomson, Solicitor, each signed the CP Undertaking.

Evidence to the Inquiry

Paul Dacre, the then editor of the Daily Mail and editor-in-chief at Associated, provided a witness statement to the Inquiry, dated 25 October 2011. He stated that, as chairman of the Editors’ Code of Practice Committee of the Press Complaints Commission, he was “committed to upholding the Editors’ Code [of Practice]” and that “adherence to both the letter and spirit of the Editors’ Code is mandatory and all journalists employed by [Associated] are contractually obliged to comply with the Code.” He detailed, in his statement, the methods used by Associated to ensure that its journalists “rigorously observe the highest professional and ethical standards, and comply with the Editors’ Code and the law, including the Data Protection Act 1998 and the Bribery Act 2010”. “High professional standards”, were, he said, “the key to the success of our newspapers”.

As to the use of inquiry agents, Mr Dacre said that, in April 2007, following consideration of the ICO’s reports in 2006, he imposed a ban on using inquiry agents. He asked the managing editors to write to all editorial staff and freelancers to inform them that the use of all external agencies for research and information was prohibited and to obtain a signed statement that they understood and would comply with the new policy, but doubted that journalists were responsible for breaches of the Data Protection Act 1998:

In an apparent endorsement and defence of self-regulation of the print media, in his witness statement, Mr Dacre said:

Peter Wright, at the time the editor of The Mail on Sunday, also gave a witness statement to the Inquiry. He stated that, in early 2004, Associated had learned, from Operation Motorman, that Mr Whittamore had been providing regular services to its journalists. An instruction was issued that inquiry agents were not to be used without clearance from department heads, who were required to be satisfied that other means of obtaining information had been exhausted. Mr Wright stated that, “inquiry agents such as Mr Whittamore possessed CD-Roms containing databases of public records and were adept at searching them.” He concluded:

Ms Hartley, Associated’s Head of Editorial Legal Services, also provided a witness statement to the Inquiry, dated 25 October 2011. As to phone-hacking, she stated:

Ms Hartley joined Associated in January 2009, as Group Legal Advisor, became head of Editorial Legal Services for Associated in 2010 and, since 2020, has been the Group Editorial Legal Director. Ms Hartley therefore joined Associated after the implementation of the ban on the use of inquiry agents in 2007. In relation to Operation Motorman, Ms Hartley stated, in her witness statement to the Inquiry, that representatives of Associated had, on 17 August 2011, attended the ICO’s offices to see and discuss the evidence that had underpinned the “What price privacy now?” report. Based on that meeting, and consideration of the evidence provided by the ICO, Ms Hartley stated:

As to the evidence, contained in documents from the ICO, suggesting that Associated journalists had used Mr Whittamore to ‘blag’ information, Ms Hartley said in her witness statement to the Inquiry:

Lord Rothermere, Executive Chairman of the Daily Mail & General Trust (the owner of Associated) (“DMGT”), provided a statement to the Inquiry dated 3 May 2012. He confirmed that he was aware of Mr Mulcaire’s arrest and conviction. He said Mr Dacre, as Editor-in-Chief of Associated’s newspapers, gave him (and the board of DMGT) an assurance that “to the best of his knowledge voicemail messages had not been intercepted by [Associated] journalists”. Lord Rothermere also stated that, in 2011, Mr Dacre had tasked Ms Hartley to lead an internal review of Associated’s editorial policies and procedures and that it had concluded that there was “no evidence to suggest that any phone hacking had taken place within our newspaper division.”

Hugh Grant provided a witness statement to the Inquiry, dated 3 November 2011, and gave oral evidence on 21 November 2011. He faintly suggested, in his evidence, that an article, published in The Mail on Sunday on 18 February 2007, which made a false allegation that he was having an affair, could have been the product of phone hacking. Mr Grant accepted a suggestion by Robert Jay QC, Counsel for the Inquiry, that any claim that the story may have been obtained by phone-hacking was “speculation”, but added “I’d love to hear what The Daily Mail’s or the Sunday Mail’s explanation for that article is, what that source was, if it wasn’t phone hacking”. Very shortly after Mr Grant had finished giving his evidence, Associated issued a public statement which included the following (“the ‘Mendacious smears’ Statement”):

The following day, Associated published an article and leader concerning Mr Grant’s evidence to the Inquiry. The article, which quotedthe ‘Mendacious smears’ Statement, from the previous day, contained the following:

Jemima Khan provided a witness statement to the Inquiry, dated 27 November 2011. Referring to the ‘Mendacious smears’ Statement, she said:

Ms Hartley provided a supplemental witness statement to the Inquiry, dated 6 January 2012, on behalf of Associated. In it, Ms Hartley stated that the source of the story about Mr Grant had been “a confidential contact of a freelance journalist who often works with [a journalist]. That contact provided the information contained in the story… Both the [freelance journalist] and [the journalist] have emphatically denied that the story was based on or derived from voicemail messages.” Ms Hartley’s witness statement no longer suggested that Ms Khan had been the ultimate source of the story.

Ms Hartley gave oral evidence to the Inquiry on 11 January 2012. A report of her evidence appeared the following day in The Daily Mail, which included the following:

Mr Dacre gave oral evidence to the Inquiry on 6 and 9 February 2012. He was questioned about the use of inquiry agents, and specifically the use of Mr Whittamore. Asked whether he admitted the possibility that at least some of the inquiries made by Mr Whittamore were breaches of the Data Protection Act, he responded:

As to the suggestion that there had been any phone hacking at Associated, Mr Dacre was forthright and direct:

Mr Dacre was questioned about the ‘Mendacious smears’ Statement. It was suggested to him that it had been an overreaction to Mr Grant’s evidence. Mr Dacre’s response was:

In her oral evidence to the Inquiry, Ms Hartley was asked about her searches for records relating to payments to companies and individuals. She answered as follows:

The (former) Information Commissioner, Richard Thomas, gave a witness statement to the Inquiry, in which he challenged Ms Hartley’s conclusion that the transactions, where Associated had paid Mr Whittamore for information, were “likely mainly to reflect inquiries that did not involve illegal activity” (see [42] above). Mr Thomas stated that the total sum, paid to Mr Whittamore by three newspapers, including The Daily Mail, “seems high if all that information was obtained legitimately”. In his evidence to the Inquiry, Mr Thomas expressed his view that it was highly unlikely that ex-directory numbers had been obtained legally.

It was outside the remit of the Inquiry to investigate specific alleged breaches of the law, or “who did what to whom” as Sir Brian Leveson put it. During the Inquiry, Associated objected to the Inquiry’s approach to evidence regarding Operation Motorman, and the conclusions that could be drawn from it. In submissions at the conclusion of Module 1 of the Inquiry, Associated argued that 50% of the transactions undertaken by Mr Whittamore were ‘area and occupancy’ searches, which could be conducted using data available for purchase from commercial sources. In consequence, journalists would have had no reason to doubt that they were carried out lawfully. Ex-directory and ‘conversion searches’ had amounted to 28% of the transactions and were also available from commercially available databases. As for the remaining 22%, Associated argued that no assessment had been made of whether a public interest defence might have been available to defend the relevant inquiry. Ultimately, the issue was the subject of a ruling by the Inquiry on 10 July 2012. An agreed position was reached by the Core Participants, including Associated – reflected in the final Report (see [63] below) – that the Motorman evidence provided prima facie evidence that journalists did act in breach of s.55 by obtaining information which, prima facie, could not be justified in the public interest.

The final phases of the Inquiry and publication of documents

On 17 August 2012, the Inquiry sent an email to Associated’s solicitors:

Associated’s solicitors responded, on 13 September 2012, claiming that, with certain identified exceptions, the documents the Inquiry proposed to publish, including the Ledgers, were “confidential and/or commercially sensitive” and Associated objected to their publication on the Inquiry website.

The Inquiry responded promptly, on 13 September 2012:

Associated’s solicitors sent a response, on 18 September 2012, making further submissions. As to the proposed publication of the Ledgers, Associated objected to publication on the grounds that they contained information that was confidential and commercially sensitive: “They contain information relating to ANL’s business and financial operations and procedures which its competitors could use to their advantage.” There was no substantive response from the Inquiry to Associated’s further submissions.

Publication of the Final Report

The final Inquiry Report was published on 29 November 2012.

The Report dealt with the use of private investigators in several chapters. Part E, Chapter 3, dealt with Operation Motorman and the ICO Reports (“What price privacy?” and “What price privacy now?”). The Report included the table from the second ICO Report showing the number of transactions between Mr Whittamore and journalists for various newspapers and magazines, including Associated (see [22] above).

Consideration of whether individual journalists had sought and obtained private information in breach of the Data Protection Act 1998 was outside the scope of the Inquiry. The Inquiry Report noted, in Chapter 3, paragraph 3.3, in respect of the evidence from Operation Motorman, that the Core Participants (including Associated):

The Inquiry’s conclusions on what Operation Motorman had demonstrated were (footnotes omitted):

It was also outside the remit of the Inquiry to reach conclusions as to individual incidents of alleged phone-hacking or other illegal activity. Nevertheless, Sir Brian Leveson did include several “Case Studies”, one of which concerned the ‘Mendacious smear’ Statement (Part F, Chapter 5, Section 6). His conclusions were:

Restriction orders imposed by the Inquiry

During the Inquiry, several restriction orders were made under s.19 Inquiries Act 2005.

On 7 December 2011, Sir Brian Leveson made a restriction order (“the First Restriction Order”). As recorded in the order itself, the order was made after a confidential witness statement, provided to the Inquiry by a prospective witness, had been published on the Internet before the relevant witness had given oral evidence. The First Restriction Order provided:

A further restriction order was made on 26 April 2012 (“the Second Restriction Order”), in the following terms:

In a subsequent ruling on 14 May 2012, concerning a further leak of evidence prior to a witness giving evidence, Sir Brian Leveson explained the purpose and effect of the Restriction Orders as follows:

On 29 November 2012, the same day that the Inquiry Report was published, Sir Brian Leveson imposed a further, and (as it was to turn out) final, restriction order (“the Final Restriction Order”). The Final Restriction Order was headed, “General Restriction Order in relation to redactions made to evidence and documents, and evidence and documents withheld by the Inquiry”, and provided:

The Schedule to the Order identified, by URN, the documents referred to in Paragraph (1) of the Final Restriction Order. There is no dispute that the Ledgers were not included in the Schedule. The Schedule contained the following:

Equally, there is no dispute that the Ledgers were not published by the Inquiry on its website or otherwise.

Legal principles

The Limitation Application is brought on two bases: (1) striking out under CPR 3.4(2)(a) and (b); and (2) a summary judgment application under CPR Part 24.

Striking out

CPR 3.4(2) provides:

Limitation operates as a defence to a civil claim. It must therefore be raised by a defendant in answer to the claim. As such, even an unanswerable limitation defence does not lead to the conclusion that an otherwise viable case does not disclose reasonable grounds for bringing the claim. For that reason, if limitation is the sole basis for an application to strike out under CPR 3.4(2)(a), the application will be dismissed. In Ronex Properties Ltd -v- John Laing Construction Ltd [1983] QB 398, 404D-E, Donaldson LJ explained:

Ronex recognises, at least in theory, that, if the claimant has no answer to an obviously well-founded limitation defence, the Court has jurisdiction to strike out the claim under what is now CPR 3.4(2)(b), but the more obvious route of challenge is a summary judgment application under CPR Part 24. I find it difficult to imagine circumstances in which a challenge based on limitation would have a different outcome depending on whether it was made under CPR 3.4(2)(b) or Part 24. If anything, the hurdle for striking out is higher than Part 24. That is because, to succeed with a strike out under CPR 3.4(2)(b), the defendant must satisfy the Court that the claim is an abuse of process. If the objection is based solely on limitation, the only way of doing so is to satisfy the Court that the claim is bound to fail on the issue of limitation and therefore that it is wasteful of the resources of the parties and the Court to let the claim continue. Looked at through the prism of Part 24, the test is whether there is no real prospect that the limitation defence will fail.

In his oral submissions, Mr Beltrami KC did not press the CPR 3.4(2)(b) application on behalf of Associated. He concentrated on the Part 24 application. For the reasons I have explained above, in my judgment he was right to do so.

Summary judgment

The principles to be applied on Part 24 applications are well established and were not in dispute between the parties: see EasyAir Ltd -v- Opal Telecom Ltd [2009] EWHC 339 (Ch) [15]; AC Ward & Sons Ltd -v- Catlin (Five) Ltd  [2010] Lloyd’s Rep I.R. 301 [24]; Global Asset Capital -v- Aabar Block [2017] 4 WLR 163 [27]. The principles were summarised in Daniels -v- Lloyds Bank [2018] EWHC 660 (Comm) [49]:

As to the last point, Mr Sherborne, for the Claimants, also referred to the judgment of Lord Collins in AK Investments CJSC -v- Kyrgyz Mobil Tel Limited [2012] 1 WLR 1804 [84].

There are numerous authorities in which appellate courts have emphasised the warning that the Court should not conduct a ‘mini-trial’, on the basis of written evidence and without the usual phases of disclosure and witnesses being cross-examined at trial: see e.g. Alpha Rocks Solicitors -v- Alade [2015] 1 WLR 4534 [25]-[27]; Allied Fort Insurance Services Ltd -v- Ahmed [2015] EWCA Civ 841 [80], [89], [91]-[104]; Three Rivers [94]-[96].

In my judgment, these authorities demonstrate the important distinction between the assessment, or evaluation, of the evidence (either undisputed or taken at its highest for the defendant) and fact-finding, particularly resolution of material disputed facts. A judge assessing a summary judgment application may carry out the former exercise (if s/he is satisfied that there is no real prospect that the available evidence will materially alter by trial); it is the latter that is prohibited: Three Rivers [158]. A party cannot avoid summary disposal of a claim or issue simply by making it appear complicated or to involve the consideration of lots of evidence. If, on analysis, the Court is satisfied that there is no substance to the claim or issue, and there is no real prospect that there ever will be, summary judgment may be appropriate: Three Rivers [156].

I would respectfully adopt the summary given by Cockerill J in King -v- Stiefel [2021] EWHC 1045 (Comm) [21] (approved by the Court of Appeal in Trafalgar Multi Asset Trading Company Limited -v- Hadley [2022] EWCA Civ 1639 [38]):

In the MGN litigation, Fancourt J refused an application for summary judgment, on the grounds of limitation, substantially on the ground that the relevant facts would have to be determined at trial: [2022] EWHC 1222 (Ch) [180]-[183]. In refusing permission to appeal against his decision, Andrews LJ noted:

s.32 Limitation Act 1980

It is common ground that all the acts complained of by the Claimants are alleged to have occurred over 6 years ago. As such, Associated would have a defence of limitation in respect of the claims for misuse of private information under s.2 Limitation Act 1980.

However, pursuant to s.32 Limitation Act 1980, a period of limitation may be postponed in cases of fraud, concealment or mistake. The material part of s.32 provides:

Each Claimant alleges that Associated did deliberately conceal the Unlawful Acts about which complaint is made, both at the time they were committed and subsequently (see §6 Particulars of Claim – [5] above), and relies upon s.32(1)(b) to postpone the running of the 6-year period of limitation. The statutory defence of limitation reflects a policy decision that there must be finality to litigation. Section 32 (and other exceptions provided in the Act) operates to mitigate the potential unfairness of an otherwise hard-edged rule.

In Bilta (UK) Ltd -v- SBS Securities plc [2022] BCC 833 [31], Marcus Smith J summarised the principles derived from the extensive case law on s.32, as follows (emphasis in the original):

It is perhaps of some importance to note that Bilta was a decision made after trial. The fact-sensitive nature of the inquiry under s.32 was emphasised in OT Computers [27]:

Associated bases its Limitation Application, in substantial part, on the availability of material in the public domain of which, Associated contends, each Claimant could, with reasonable diligence, have been aware. As such, it is perhaps important to note the observations of the Court of Appeal in DSG Retail Ltd -v- Mastercard Inc [2020] Bus LR 1360:

As to the interpretation of the words “deliberate concealment” in the section, Males LJ said this, in Canada Square Operations Ltd -v- Potter [2022] QB 1 [164] (emphasis added):

The “relevant facts” for these purposes are those facts without which the cause of action is incomplete. On the authorities, this issue should be interpreted narrowly. Limitation does not cease to run because the relevant claimant does not have certainty that the claim will succeed; a reasonable belief that s/he has a worthwhile claim will suffice: Gemalto Holdings BV -v- Infineon Technologies AG [2023] Ch 169 [45]-[47], [65]. In that case, the Master of the Rolls held [45]:

Gemalto was a cartel case. In such cases, the wrongdoing is typically deliberately concealed. The Master of the Rolls explained the nature of the concealment that had to be discovered:

If a claimant can plead a viable – or worthwhile – claim without needing to know the facts in question, there is no good reason why the primary limitation period should not apply: Canada Square [167]. Males LJ, added, however: “But it does not necessarily follow that the section as a whole should be narrowly interpreted. It should be given its natural and ordinary meaning without a predisposition to interpret it either narrowly or broadly.”

As to whether the Claimants could, with reasonable diligence, have discovered the concealment:

In Various Claimants -v- MGN Ltd [2022] EWHC 1222 (Ch) , having considered the relevant authorities, Fancourt J summarised how the requirement of reasonable diligence should be applied as follows:

Fancourt J returned to consider the same point in Duke of Sussex -v- NGN Ltd  [2023] EMLR 21 [21] and held:

In my view, in an appropriate case, there may be scope for overlap – on the facts – between the issue of concealment and whether the concealed facts could have been discovered with reasonable diligence. The fact that a defendant simply disputes an element of the cause of action does not mean that commencement of the limitation period is further postponed: Various Claimants -v- MGN Ltd [57]. But if a defendant is also responsible for misleading a claimant that s/he has no claim, those facts may be relevant to the issue of whether the concealment could with reasonable diligence have been discovered. For example, if the defendant took steps to put the claimant “off the scent” that may be relevant both to the factual issue of concealment and also to whether that concealment could with reasonable diligence have been discovered: J. D. Wetherspoon plc -v- Van de Berg & Co Ltd [2007] EHWC 1044 (Ch) [44]; Various Claimants -v- MGN Ltd [120]-[121], [143], [170]. Put shortly, the more extensive and effective the efforts to conceal the alleged wrongdoing, the more difficult it may be to discover, even with reasonable diligence.

As the authorities I have set out have made clear, it is important, when considering this issue, to analyse carefully the nature of the claim that each Claimant has now advanced.

In that respect, Mr Sherborne did argue that, when considering the Limitation Application, the Court was required to approach the matter on the basis that each Claimant is bringing a claim that relies upon multiple individual causes of action, that would have to be considered separately. This argument principally relied upon the Court of Appeal’s decision in The Kriti Palm  [2007] 1 Lloyd’s Rep 555; [2007] 2 CLC 223. In my judgment, interesting though Mr Sherborne’s argument is, I do not need to consider it further for two reasons.

First, the argument was advanced to, and rejected by, Fancourt J in Various Claimants -v- MGN [78]-[94]. Mr Sherborne submitted to me that Fancourt J was wrong in his analysis. As a matter of precedent, I am required to follow Fancourt J’s decision unless I consider it to be plainly wrong. I do not. Indeed, to my mind, the Judge’s reasoning is correct.

Second, and in any event, my decision on the other points that I must decide means that it is not necessary for me to resolve this issue.

Claims for misuse of private information

Broadly stated, the claims advanced by the Claimants are for the tort of misuse of private information. As such, at the first stage, each claimant must establish that s/he has a reasonable expectation of privacy in relation to information. If s/he does, the second stage is to consider whether that expectation of privacy is outweighed by a countervailing right/interest, typically the right of freedom of expression: ZXC -v- Bloomberg LP [2022] AC 1158 [47]-[50]. At the first stage, the question whether there is a reasonable expectation of privacy is a broad one, which takes account of all the circumstances of the case. Several common factors were identified by the Court of Appeal in Murray -v- Express Newspapers plc [2009] Ch 481 [36].

In a typical Unlawful Information Gathering claim, the publication of an article which contains private information of the relevant Claimant is, it is submitted, the tip of the iceberg. Whilst the published article may have been in plain view to everyone, including the relevant Claimant, any anterior Unlawful Acts used to obtain the information were not. Those acts, the Claimants contend, were concealed from them by Associated (or those for whom it is responsible) and could not have been discovered by them, with reasonable diligence, before 6 October 2016 (6 years before the claims were commenced).

What is a claimant in a misuse of private information claim required to plead in his/her statement of case? In compliance with CPR PD 53B §8.1, a claimant must specify in his/her Particulars of Claim:

Typically, the tort of misuse of private information has tended to concern the actual (or threatened) publication of the private information. But publication is not the only way that personal information can be misused under the tort. Obtaining information – without any subsequent publication of it – in circumstances in which the claimant has a reasonable expectation of privacy can be sufficient; c.f. Alan Yentob’s claim in  Gulati -v- MGN [2016] FSR 12,and see Lord Neuberger’s observations in Frost -v- MGN Ltd [2017] 1 WLR 1415 [60]-[61].

Confronted with a similar situation, in litigation against MGN (the publishers of various Mirror newspapers), Fancourt J held that, whilst a misuse of private information claim, based solely on publication of an article, was barred by limitation, a separate and materially different claim, based on alleged anterior Unlawful Information Gathering, was not: Various Claimants -v- MGN Ltd [105], [124]. The position is very similar here, but the Claimants submit that they are in a materially stronger position than the claimants in the MGN litigation because of the history of Associated’s steadfast denials that it, or its journalists/agents, had engaged in Unlawful Acts to obtain and publish information in its newspapers and online.

Evidence

In support of the Limitation Application, the principal evidence relied upon by Associated has been provided in the witness statement of Francesca Richmond, a solicitor at Baker & McKenzie, dated 20 January 2023. The statement itself is substantial, but it also exhibits a very large number of further documents. The purpose of this evidence is, principally, to demonstrate that the Claimants have no real prospect of demonstrating that they could not, with reasonable diligence, have discovered the facts they needed to bring a claim until after October 2016. Principally, Ms Richmond’s evidence is directed at seeking to demonstrate the point at which, as Associated contends, each Claimant could with reasonable diligence have discovered the facts relevant to his/her cause of action. Ms Richmond recognises that the Court must consider the claim of each Claimant separately.

The Limitation Application has been made prior to (1) a Defence, in which Associated raised a limitation defence; (2) a Reply in which each Claimant would (it can reasonably be anticipated) set out his/her case on deliberate concealment (under s.32(1)(b)) in answer to any limitation defence raised by Associated; (3) a Rejoinder, setting out Associated’s case in response on s.32; and (4) the usual civil litigation phases of disclosure and witness evidence at trial.

In answer to the Limitation Application, each Claimant has filed a witness statement. The Claimants have also relied upon witness statements from: (1) Callum Galbraith, solicitor at Hamlins LLP; (2) Imran Khan KC, a barrister, described by Baroness Lawrence as her “long standing counsel”; (3) Daniel Portley-Hanks, a private investigator who worked for The Daily Mail and The Mail on Sunday between 1999 and 2013; (4) Steve Whittamore, the private investigator whose activities were at the centre of Operation Motorman (see [19]-[22] above) and whose services, the Claimants allege, were used by Associated between 1998 and 2007; (5) Hugh Grant, the actor; and (6) Michael Ward, an individual who claims that he was the subject of Unlawful Activities of Associated’s journalists, including burglary of his home.

Associated has filed evidence in reply from Ms Hartley, Gavin Burrows (dated 8 March 2023), and a second witness statement of Ms Richmond. The statement of Mr Burrows, filed by Associated, led to the Claimants filing a further witness statement from Mr Galbraith which exhibited a witness statement provided by Mr Burrows, dated 16 August 2021. I deal with the rather stark contrast between Mr Burrows’ two statements in more detail below (see [138]-[146]).

In her witness statement, dated 10 March 2023, Ms Hartley rejected Mr Galbraith’s assertion that Associated had withheld from the Inquiry evidence relating to the use of private investigators. Ms Hartley confirmed that when the Ledgers were provided in response to the s.21 Notices that had been served on Associated, it was made clear that the underlying invoices had not been provided because they were kept in storage and were difficult to search. However, it was indicated that if the Inquiry had further questions in relation to these documents, Associated would be happy to provide further information. The use of private investigators had also been explored with Associated’s witnesses during the Inquiry. The entirety of Associated’s evidence, including the Ledgers had been available to the Core Participants, their solicitors and counsel on the Inquiry’s document management system, where all evidence submitted to the Inquiry was uploaded.

I do not intend to attempt to summarise all the evidence contained in (or exhibited to) the substantial witness statements and exhibits that have been filed by the parties. Both Mr Beltrami KC and Mr Sherborne were sensibly selective in their submissions, and I intend to do likewise in this judgment. This is a summary judgment application. If Associated cannot deliver a ‘knockout’ blow, in any particular claim, with its best evidence, the position is not going to be improved by poring over the detail of all the rest of the material. If such an exercise is ultimately required, the proper place at which to carry out a detailed consideration of the totality of the evidence is at a trial.

The Claimants’ general evidence

Before turning to consider the evidence in relation to each Claimant, there is some evidence, relied upon by the Claimants, which is advanced to support their general case that Unlawful Information Gathering was widely practised at Associated.

The claim advanced by the Claimants relies on evidence provided by, or in relation to, a large number of people. In his witness statement, Mr Galbraith has identified these individuals and confirmed when the Claimants received relevant evidence from, or regarding, each of them. Some of those individuals have subsequently provided witness statements to the Claimants. From the Claimants’ perspective, the most important evidence has been provided by private investigators who have either claimed to have carried out themselves Unlawful Acts on behalf of Associated or that such acts were carried out by others. Several of these key individuals, identified by Mr Galbraith, are referred to in this judgment, but it is important to note that there are many other individuals identified in Mr Galbraith’s evidence and in the Particulars of Claim whom the Claimants allege were also engaged in, or facilitated, Unlawful Acts on behalf of Associated. The key evidence received by the Claimants was as follows:

Mr Whittamore, the main focus of Operation Motorman, has given a statement to the Claimants, dated 23 February 2023. He states that journalists from Associated first started to use his services from mid-1998 and that, by 2007, “they were [his] best customers”. As to his provision of information to the Claimants he states:

The Claimants have relied upon a witness statement from Derek Haslam. Mr Haslam is a retired police officer. He says that, whilst a serving police officer, acting as an undercover operative, he infiltrated an organisation run by PI1, between 1997 and 2006. Mr Haslam states that he began to help the Claimants, in 2022, by providing them with information about the activities of certain private investigators, including PI1, PI2 and PI4. In his witness statement, he said this:

The Claimants have filed a witness statement from Mr Portley-Hanks, dated 22 February 2023. In his statement, Mr Portley-Hanks is direct in his claims:

Explaining when and why he had decided to provide his evidence to the Claimants, Mr Portley-Hanks states:

Baroness Lawrence

In her witness statement, Baroness Lawrence states that she was contacted in January 2022 by a group that was investigating potential claims against Associated. At a meeting, she was told that two private investigators – Mr Burrows and PI1 – had recently confessed “to carrying out a wide range of criminal activities aimed at secretly stealing and exploiting information from victims on the instruction of The Mail newspapers”. She was told that both she, and the investigation into her son’s murder, had been a specific target, and that one of the investigators had been tasked to monitor her telephone bills and bank accounts, and her private communications for several years. One reason, she was told, why she had been subjected to this surveillance was to check that she was not receiving ‘buy up’ money from other newspapers.

During 2022, Baroness Lawrence said that she worked with the lawyers to investigate the matter further. She was told the name of a journalist at The Daily Mail who, it was claimed, had instructed PI1 to target her for ‘internal security’. Baroness Lawrence described being “numb with anger” on learning this. She described what she learned from PI1 in the following terms:

Relevant to Baroness Lawrence’s case is specific evidence provided by Mr Haslam (see [115] above). In his witness statement, Mr Haslam stated:

Further evidence that had come to light, following the revelations of Mr Burrows and PI1, is also identified and relied upon by Baroness Lawrence in her witness statement. Before these revelations, Baroness Lawrence states that she had no knowledge of, or even a suspicion, that she had been the target of Unlawful Information Gathering.

Baroness Lawrence does not dispute that she was aware of the four Unlawful Articles, complained of in her claim, when they were originally published. In her witness statement she states that she believed at the time that those articles were the result of leaks from the police. In a pre-action letter, it was stated that Baroness Lawrence had become “deeply paranoid by strange things happening around her, and by the unexplained disclosure of her private information as well as information relating to Stephen’s murder investigation in The Daily Mail throughout the relevant period… [N]either the police nor the CPS had any reason for information published in [the Articles] to be disclosed” and were part of a “familiar pattern” of “unexplained disclosures” in The Daily Mail, which “at the time she… assumed must have come from some legitimate source (as opposed to illegal activity)”.

Baroness Lawrence does not deny awareness of the phone hacking scandal generally, though she says that she “did not pay it much attention”as she did not believe it would have anything to do with her. Similarly, Mr Khan KC states that he and Baroness Lawrence “were aware of stories of hacking by the News of the World around the time of the scandal surrounding that newspaper”but that they did not “think it would have anything to do with Doreen or The Mail”. Baroness Lawrence states that she did not watch or follow the Inquiry, was unaware of the various police investigations into phone-hacking, and was not informed by the police that she may have been the subject of Unlawful Information Gathering.

Associated contends that Baroness Lawrence was generally aware of the issue of corruption in the police and had discovered, in 2013, that she had been the target of police surveillance. Indeed, she blamed the police for leaking information to the media when the Unlawful Articles were published. In her witness statement, Baroness Lawrence describes her sense of betrayal at being told of the alleged involvement of Associated. Although she had long suspected that there had been police corruption in the investigation of her son’s murder, she said it had:

Associated relies on evidence that Detective Chief Inspector Clive Driscoll, the senior investigating officer in the 2006 re-investigation of the murder of Stephen Lawrence, believed that the fourth Unlawful Article relied on by Baroness Lawrence (dated 8 November 2007) could have been the product of phone hacking. DCI Driscoll made this allegation in a book, “In Pursuit of the Truth”, published in July 2015,for which Baroness Lawrence wrote a foreword stating that “Reading this book throws light on some of the problems that happened in my own case”. This is what DCI Driscoll said in one passage in the 400-page book:

Associated relied upon this evidence as demonstrating that Baroness Lawrence must therefore have been aware of DCI Driscoll’s suspicions of phone-hacking.

Elizabeth Hurley

In her witness statement, Ms Hurley explains when she became aware of alleged illegal activities against her by Associated:

Ms Hurley does not deny contemporaneous knowledge of the Unlawful Articles on which she relies. She confirms in her evidence that she “was aware at the time that information about me was finding itself into the media”. In a pre-action letter, it was stated that Ms Hurley “became deeply paranoid and suspicious by unexplained disclosures of her private information in [Associated’s] publications, even where measures were taken to protect her privacy. [She] began to believe there were leaks within her camp. She felt perpetually unable to know who to trust and profoundly vulnerable in what she perceived as her inability to protect her son. This feeling of paranoia remains with her today.”

Associated has relied upon evidence that Ms Hurley was identified as an early and high-profile victim of phone hacking at an even earlier stage. In July 2011, BBC’s Newsnight broadcast an eyewitness account of Ms Hurley’s phone being hacked and an MGN journalist noting down her voicemails. In December 2011, she was identified at the Inquiry as having been a target of Mr Whittamore, which was also widely reported.

Relying upon that, Associated submitted:

Ms Hurley states that, in 2017, she instructed a lawyer to make a subject access request, under the Data Protection Act 1998, to the ICO for information relating to her from Operation Motorman. She received one document in response, which she said “revealed more Murdoch commissioned intrusion into my life” by a named journalist. However, “it showed nothing about The Mail and had I caught a scent of any of the things I now know about earlier, I would have done something earlier…”

Then, during 2021, Ms Hurley states that she learned from Mr Burrows the extent to which, he alleged, she had been the target of Unlawful Information Gathering:

The detail of the information that Ms Hurley says that Mr Burrows provided to her in 2021 is perhaps of importance:

Finally, in relation to Ms Hurley, there is a witness statement from Hugh Grant. Mr Grant denies the suggestion, made in Ms Richmond’s witness statement, that he had informed Ms Hurley that he had evidence that Associated was guilty of hacking her phone or other unlawful activities towards her. He denies both telling Ms Hurley this, or having such evidence, and that was the case for Sir Elton John, David Furnish and Sir Simon Hughes. He had not spoken to or met Prince Harry or, he believed, Baroness Lawrence or Sadie Frost.

Mr Grant added that, whatever his suspicions, he was well aware of the “frequent, often ferocious, denials issued by Associated”. He sets out the history of the ‘Mendacious smears’ Statement at the Inquiry and concludes:

In 2012, Mr Grant made a subject access request to the ICO for any information relating to him from Operation Motorman. The information he received showed that he had been targeted by Mr Whittamore, but the evidence connected his inquiries with journalists who worked for the News of the World and the Sunday People, not any Associated titles.

In relation to Ms Hurley, Associated contends that she could, with reasonable diligence, have discovered the following facts:

Although I am, in this section of the judgment, considering the evidence concerning Ms Hurley, it is convenient here to consider the evidence of two of the private investigators: Mr Burrows and Mr Whittamore. Their evidence is relied upon by all Claimants. (I deal with the evidence of Mr Portley-Hanks elsewhere in the judgment (see [116]-[117] above and [153] below)).

In the litigation, allegations concerning Mr Burrows’ activities appeared first in the Particulars of Claim. However, his first witness statement, dated 8 March 2023, was filed by Associated in response to the Claimant’s evidence on the Limitation Application, including the evidence of Ms Hurley. This statement is in, perhaps, unconventional terms – even more so when compared against an earlier statement he had provided to the Claimants’ solicitors (see [142] below). After explaining shortly his background, Mr Burrows states:

Mr Burrows then goes through the relevant paragraphs of the Particulars of Claim in each action, in which he is named, and sets out his response. For example:

In respect of each of the Claimants, Mr Burrows repeats the same phrase:

The structure, brevity, and precision of language of this witness statement would have struck me as odd, even without seeing the statement of Mr Burrows, filed by the Claimants, in response to Associated’s evidence. That statement is dated 16 August 2021 (so around 19 months earlier). Two things immediately stand out from this statement, in contrast to the later statement provided to Associated; first, it adopts a conventional narrative format; second, the abundance of detail.

In the statement he gave to the Claimants, Mr Burrows explains how he first met J53, in 2000, when he was engaged to work on a story, with J53, for The Mail on Sunday. He then describes the work that he did for The Mail on Sunday in the following terms:

What follows, over some 31 paragraphs, presents a detailed account of what Mr Burrows claims to have done, how, with whom and for what reward. He sets out the prices he says he charged and the way in which he was paid. As I say, the detail is striking. Whether the contents of this statement are true, would be a matter to be determined on another occasion.

Mr Burrows then turns, in his statement, to identify the targets of his Unlawful Information Gathering. Of the current Claimants, he identifies Prince Harry, Elizabeth Hurley, Sir Elton John, David Furnish and Sadie Frost as targets of his activities. As I am presently dealing with the evidence relating to Ms Hurley, I will set out what he says about his activities against her:

At the end of his witness statement, Mr Burrows reflected on his activities and included an apology:

The position that confronts the Court is that Mr Burrows has given two, flatly contradictory, statements to each side in this litigation. It is perhaps surprising that, when he gave his witness statement to Associated, he apparently did not mention that he had given a completely contradictory statement, some 19 months earlier, to the Claimants. As I observed during the hearing, that might be thought to be a classic case of a conflict of fact that could only be resolved at a trial. It certainly cannot be resolved on a summary judgment application. For the purposes of the Limitation Application, however, it is more a question of assessing the significance of the information Mr Burrows gave to the Claimants in 2021. I will return to this below.

Sir Elton John and David Furnish

Although they are individual Claimants, Associated has approached the claims of Sir Elton and Mr Furnish together. Complaint is made that, in their witness statements, both Sir Elton and Mr Furnish have “failed to give anything approaching a full account of [their] knowledge of the issue of [Unlawful Information Gathering] by the media”, but it is submitted that they had a “general level of contemporaneous awareness” arising from (a) their friendship with Hugh Grant; (b) information gathered as a result of Mr Furnish following the Inquiry and that allegations of Unlawful Information Gathering had been put to Mr Dacre at the Inquiry; and (c) their civil claims for phone-hacking against MGN in 2015-2016. Based on that, Associated contends that Sir Elton and Mr Furnish are in the same position as Ms Hurley. They were close friends of Mr Grant and could easily have discovered from him his beliefs and suspicions as to Unlawful Information Gathering by Associated. Five of the articles, published by Associated, relied upon by Sir Elton and Mr Furnish as the product of Unlawful Information Gathering, were written by journalists who were formerly employed by NGN. Six articles were written by journalists who had been publicly “implicated” in Unlawful Information Gathering at the time of the Inquiry.

Sir Elton has provided a witness statement in response to the Limitation Application, dated 24 February 2023. He states that, in early 2021, he (and Mr Furnish) received a call from Ms Hurley. She told them that a private investigator, Gavin Burrows, had been tapping their landlines and their Windsor home for The Mail on Sunday. He continued:

Mr Furnish has also provided a witness statement, dated 24 February 2023. He confirms that it was the telephone call from Ms Hurley that first alerted him of the allegation that he and Sir Elton had been targeted by Mr Burrows. He explains that it was Ms Hurley who previously alerted them, in November 2015, to similar allegations against The Mirror:

Mr Furnish denies that Ms Hurley (or anyone else) had alerted them to the allegations of wrongdoing by Associated before the telephone call in early 2021. Specifically, he denies that he or Sir Elton had spoken to Hugh Grant about Associated and allegations of hacking. He states that, whilst they knew of Mr Grant’s campaigning in this area, “we never once believed that they had anything to do with us”.

Mr Furnish accepts that he watched Mr Dacre giving evidence to the Inquiry in which he stated that Associated had never hacked a phone. “He was unequivocal and very strenuous in his denials. I believed him,” Mr Furnish states, adding that Associated has denied and rejected the Claimants’ claims, publicly calling them “preposterous”.

Finally, Mr Furnish refers to evidence that was obtained, in 2021, from Daniel Portley-Hanks, another private investigator who, he was told, had admitted to carrying out Unlawful Acts for Associated newspapers until around 2013. One of the Unlawful Articles relied upon by Sir Elton and Mr Furnish relates to the birth of their first son. It was written by J13 and J65, journalists identified by Mr Portley-Hanks as ones for whom he had worked (see [116]-[117] above).

Sir Simon Hughes

Associated contends that Sir Simon has been “closely and actively involved in the phone hacking scandal from its earliest days”. The key matters relied upon by Associated – which are largely not disputed by Sir Simon – are:

Based on this, Associated contends that Sir Simon “has at all material times been well versed in the issue of [Unlawful Information Gathering] by the press and the use of [Private Investigators] to obtain information on subjects of media interest such as himself and his associates”.

As noted, in his witness statement, Sir Simon has not disputed the key facts relied upon by Associated. However, Sir Simon disputes that he had knowledge of, or with reasonable diligence could have discovered, the facts upon which to bring a claim against Associated. In relation to the settlement of his claim against NGN, in early February 2012, Sir Simon states that he was not aware of any evidence or material from those proceedings which demonstrated that other newspapers were using Mr Mulcaire to intercept voicemails. He believed that Mr Mulcaire had been engaged exclusively by the News of the World.NGN had admitted that: “between 16 February and 16 June 2006, [Mr Mulcaire]intercepted voicemail messages left on the mobile telephone of Simon Hughes MP and provided unlawfully obtained information to [NGN].” Sir Simon states that he believed that NGN, through Glenn Mulcaire, had been the only entity intercepting his voicemail messages: “there was no basis then at all for me to think otherwise”. Sir Simon accepts that, in his Leveson Inquiry witness statement, he had stated that the Mulcaire Notebooks had revealed that “a whole range of people [were] clearly acting in concert”, but states that he was not referring to Associated, but to several other journalists at the News of the World. He refers to a passage of his oral evidence to the Inquiry in which he made that clear. Sir Simon states that he did not see any of the Ledgers at the Inquiry.

In his witness statement, Sir Simon states that it was not until evidence emerged in early 2022 that he knew that he “might have the basis” for bringing a claim against Associated. Mr Beltrami KC suggested that this was “carefully crafted language” which obfuscated whether, at some earlier point, Sir Simon believed that he had a basis for bringing a similar, but perhaps differently formulated, claim.

Associated has placed significance reliance, in Sir Simon’s case, on his appearance on the BBC’s Andrew Marr Show, in February 2012. Associated contends that, during the programme, Sir Simon “alleged that TheDaily Mail and Mail on Sunday had engaged in ‘blagging, getting hold of information that they shouldn’t have done’”. Based on this, Associated contends that “there is no reason why Sir Simon could not have articulated the claim he now makes before October 2016.”

Sir Simon has addressed this allegation in his witness statement. He says that what he said during the programme has been taken out of context. Sir Simon had appeared on the programme, together with Amanda Platell (“AP”), an Associated journalist, to review the day’s newspapers. The context was not any suggestion that Sir Simon had been the victim of any Unlawful Information Gathering, but that, the day before, five journalists from The Sun had been arrested; a development which was described by Mr Marr as “fairly shocking” and by Ms Platell as “quite terrifying”. The relevant exchange is as follows:

In his statement, Sir Simon states that, when he said that The Mail and The Mail on Sunday had obtained information that they should not have done, this was a reference to the finding made by the ICO (following Operation Motorman). He did not say on the programme, and did not then believe, that Associated had hacked his voicemails, and he agreed with the intervention of Ms Platell repeating Associated’s denial of phone hacking.

Associated also contends that the incident involving HJK in April 2006 is relevant to Sir Simon’s actual or constructive knowledge of Unlawful Information Gathering by Associated. Sir Simon was aware that, in April 2006, an Associated journalist had approached HJK. In his evidence to the Inquiry, HJK had said he was approached at his home by the journalist after his address had been obtained by blagging. His evidence was to the effect that his mobile phone had been hacked by Mr Mulcaire. In his witness statement, Sir Simon states that he did not see HJK give evidence at the Inquiry, but Mr Beltrami KC submits that Sir Simon has not said that he was unaware of HJK’s claim that his address had been obtained by the journalist by blagging. He argues that, on the evidence, Sir Simon was aware that a journalist from Associated had approached HJK in April 2006 and he must have known that HJK held Associated responsible, and that HJK suspected that his voicemails had been hacked.

Finally, Associated relies on the following evidence which it contends demonstrates that Sir Simon had sufficient constructive knowledge to bring a claim prior to October 2016.

Prince Harry, the Duke of Sussex

Prince Harry, the Duke of Sussex (“Prince Harry”) has filed a witness statement, dated 24 February 2023, in response to the Limitation Application. He states:

As to his particular knowledge of hacking and other Unlawful Information Gathering, Prince Harry states in his statement that he did not receive any disclosure relating to Mr Mulcaire having targeted him until late 2019. He was unaware of Mr Whittamore and Operation Motorman until he started to pursue his claims against NGN and MGN. He did not closely follow the Inquiry, but he did recall Mr Dacre stating that phone hacking had not taken place at Associated.

In response to this, although the suggestion is made that Prince Harry must have been aware of the Unlawful Articles prior to October 2016, Associated has not directly challenged his denial of actual knowledge of the facts of the claim now advanced against it. As to his constructive knowledge. Associated points to Prince Harry’s awareness, in 2005, that members of staff in the Royal Household had been hacked by NGN and his having been aware “of key moments and figures in the hacking scandal”. Mr Beltrami KC submits that, if Prince Harry was aware of Mr Dacre’s evidence at the Inquiry, he would also have been aware that allegations regarding Associated’s use of Unlawful Information Gathering had been put to him at the Inquiry. More generally, Associated rely upon what was said in Prince Harry’s letter of claim about “strange things happening around his phone communications”, “unexplained disclosures of private information” in Associated publications, and journalists from Associated “regularly turning up at different locations which you would never expect them to, including South Africa… despite the extreme lengths my security team and I went to in order to protect my security and privacy”. More generally, Associated relies upon the Operation Motorman conclusions as to the extent of the use of private investigators by Associated as demonstrating that, with reasonable diligence, Prince Harry could have discovered the facts upon which he now brings his claim.

Sadie Frost Law

Ms Frost Law has filed a witness statement, dated 24 February 2023, in response to the Limitation Application. She explains her awareness of evidence that she had been targeted by Associated as follows:

Ms Frost Law brought claims against NGN and MGN for Unlawful Information Gathering. She accepts that, during Operation Weeting and in her claim against NGN, a note from the Mulcaire Notebooks identified her with the words “Mail on Sunday” included on the page. Ms Frost Law says that she does not recall seeing this evidence at the time. She was not contacted by the police, and it was not suggested to her at the time that there was any material that “could relate to what I now know Associated did to me”. She said she did not follow the Inquiry.

Associated has relied on evidence, as stated in her letter of claim, that Ms Frost Law was aware of “unexplained disclosures of her private information in [Associated’s] publications”. She was identified as a victim of Unlawful Information Gathering early in the phone hacking scandal and, by 2011, she had brought claims against NGN and Mr Mulcaire for interception of her voicemails. Her claims were settled, in January 2012, with NGN accepting that Mr Mulcaire had targeted Ms Frost Law’s voicemail messages between 2003 and 2006. In the statement in open court, that was read as part of the settlement, it was stated Ms Frost Law had become “increasingly worried about her mobile phone security” and that “[j]ournalists and photographers always appeared to know where [she] and her children were going to be”. Based on that evidence, Associated contends that by early January 2012, Ms Frost Law had actual knowledge that she had been subjected to Unlawful Information Gathering by Mr Mulcaire. In this context, Mr Beltrami KC submits that the reference to “Mail on Sunday” on a page in the Mulcaire Notebooks is significant and, even if Ms Frost Law had not noticed this when she first saw the document, or appreciated its importance, she could with reasonable diligence have followed up its significance.

More generally, Associated has relied upon the evidence that Ms Frost Law was one of the claimants in the original test case against MGN and her lack of explanation as to why the information and evidence upon which she brought the proceedings against MGN did not suggest that she might have a similar claim against Associated. In respect of the emails exchanged by ZZ and a journalist at The Mail on Sunday, which Mr Beltrami KC submits appears to have been the turning point on Ms Frost Law’s witness statement, Associated contends that Ms Frost was aware that her voicemails had been intercepted by Mr Mulcaire since 2011 and the emails were referred to during the Andy Coulson trial. As they had done for Sir Simon Hughes, the police had provided Ms Frost Law with relevant evidence from the Mulcaire Notebooks in 2011. It is submitted that a claimant acting with reasonable diligence would have reviewed all the pages of the notes and investigated their significance to any potential claim for Unlawful Information Gathering. Finally, in relation to the Unlawful Articles identified in Ms Frost Law’s claim, Associated contend that, of the by-lined journalists, three of them had previously worked for NGN and that there was “evidence in the public domain prior to October 2016 implicating four of [them] in Unlawful Evidence Gathering”.

Submissions

Associated

I have largely set out, in the preceding section, Associated’s submissions on particular aspects of the evidence. Associated’s overarching submission is that the Claimants bear the burden of demonstrating that they each have a real prospect of establishing, at trial, that some essential fact relevant to articulating their cause of action was deliberately concealed from them by Associated and that they did not know, nor with reasonable diligence could they have discovered, that matter more than six years before these proceedings were issued. Associated argues that the Claimants have, in the evidence filed for the Limitation Application, failed to identify any such issue. It accepts that there are factual issues on the evidence that would have to be resolved if any of the claims were to proceed to trial, but argues that the Claimants’ evidence “fails to offer any credible reason to conclude that they had insufficient actual knowledge, when assessed on a relevant basis, or could not with reasonable diligence have discovered any such necessary information which they did not know, more than six years prior to issuing these proceedings.”

Mr Beltrami KC, on behalf of Associated, has identified the essential elements of the Claimants’ claims as follows:

Mr Beltrami KC argues that the first core element is largely advanced by the Claimants on an inferential basis relying upon the contentions that Associated instructed a large number of private investigators, many of whom were alleged to have carried out Unlawful Information Gathering for other newspapers. Factors relied upon by the Claimants to support their inferential case include the amount of money paid by Associated to private investigators, the number of journalists who are alleged to have used the services of private investigators and the fact that several of the journalists alleged to have used private investigators were previously employed at newspapers where phone-hacking has been admitted.

Apart from Sir Simon Hughes, each of the Claimants alleges that Unlawful Articles were published by Associated which contain (or represent) the fruits of the Unlawful Information Gathering. The Claimants’ case is that each of the Unlawful Acts, to which they allege they were subject, as well as the publication of each Unlawful Article said to flow from them, gives rise to a separate cause of action. The Claimants therefore advance their claims on two bases: the unlawful obtaining of private information by Unlawful Information Gathering and the subsequent publication of the private information. In respect of the latter, all the Unlawful Articles were published prior to October 2016, so Associated has a clear defence of limitation for any claim that arises from publication of the Unlawful Articles. Associated’s short point is that, insofar as the Claimants rely on the publication of Unlawful Articles as the relevant tort, then the Claimants cannot (and do not) allege that there was any concealment; the Unlawful Articles were published to the world at large. Fancourt J reached a similar conclusion in the MGN action: Various Claimants -v- MGN Ltd [95]-[105].

As regards the claims based on obtaining the Claimants’ private information, Associated submits that there is no material difference. The claims are advanced (at least in part) on an inference that the Unlawful Articles did not represent the entirety of the private information that had been obtained by Associated. Associated submits that that inference has been available to the Claimants at any time after publication of the Unlawful Articles. It is argued that details of how, and precisely what, information was obtained are further details that did not need to be known to advance the essential claim for misuse of private information that is now brought.

Associated does submit, on the Limitation Application, that prior to October 2016, each of the Claimants had actual knowledge of the relevant facts to enable them to bring the claim they now bring; the “bare but essential bones” of the case that has now been pleaded. In summary, Associated contends that the Claimants must have known, prior to this date, that Unlawful Information Gathering had been widely used by the media during the same period that articles about them had appeared (or they had been targeted by journalists). That case is not advanced on the basis of direct evidence, but based on a contention that they must have known the relevant facts. It is argued that, by October 2016, each of the Claimants was, as a minimum, aware of the following:

Associated submits that such a pleaded case, if advanced prior to October 2016, would not have been dismissed by the Court as “purely speculative”. Mr Beltrami KC suggested that the Claimants would “naturally not [have been] expected to know precisely how (on their case) Associated had targeted them”, but nevertheless could have pleaded a proper case, relying largely on the material that they have pleaded. He argued that the fact that certain private investigators had come forward to give evidence to the Claimants, since October 2016, does not alter the position. The essential facts that the Claimants needed to plead their claim were known and available to the Claimants prior to October 2016.

As to constructive knowledge of the facts needed to bring a claim, Associated argues that the Claimants have said little on this issue in the witness statements they have filed in opposition to the Limitation Application. Mr Beltrami KC argues that it is no answer for the Claimants to assert that they have obtained new information about which they were previously ignorant. The material question, he submits, is whether they could, with reasonable diligence, have discovered that information before October 2016.

Claimants

The Claimants’ primary submission is that the issue - whether any limitation defence raised by Associated can be defeated upon proof by the relevant Claimant that there was concealment that was not, and could not with reasonable diligence have been, discovered by him/her prior to October 2016 – cannot be resolved on a summary judgment application. Relying upon Fancourt J’s observations in Various Claimants -v- MGN Ltd , this issue would require the Court to resolve disputed issues of fact that cannot be performed without those issues being resolved at a trial.

Each of the Claimants has provided evidence, in the form of a witness statement, in which s/he denies being aware prior to October 2016 that s/he had a viable claim in the form now advanced. Whether any relevant Claimant should nevertheless be fixed with constructive knowledge of such a claim would require a careful analysis of the evidence and fact-finding at trial. An inquiry into what could have been discovered with reasonable diligence requires a two-stage approach; first whether there was anything to put the relevant Claimant on notice of a need to investigate and, second, what a reasonably diligent claimant would have discovered if s/he had investigated.

Mr Sherborne submits that, in the Limitation Application, Associated mischaracterises and oversimplifies the Claimants’ claims. Associated’s submissions concentrate on the publication of the Unlawful Articles, whereas the Claimants argue that their claim is primarily about the Unlawful Acts, the fruits of which were, in the main, the Unlawful Articles. Mr Sherborne rejects the characterisation of the Claimants’ claim as being wholly inferential. Whilst the extent and prevalence of the Unlawful Acts is advanced on an inferential basis, the Claimants have now been able to identify specific allegations of Unlawful Information Gathering. They have been able to do so, principally as a result of information provided to them from private investigators – Messrs. Burrows, Whittamore, Portley-Hanks and others. It is the emergence of these facts that, Mr Sherborne submits, transformed the Claimants’ claims from speculative to realistic and worthwhile.

As to concealment, the Claimants contend that the Unlawful Acts were concealed from them right from the start. To be effective, it is necessary that the Unlawful Information Gathering is undetected; it must be concealed from the target. The Claimants allege that what was obtained by Unlawful Acts was then disguised by Associated in the resulting articles to avoid detection of the true source of the information and the methods used to obtain it, for example by attribution of the unlawfully obtained information plausibly to “insiders”, “pals” or “sources close to” the relevant Claimant.

The Claimants argue that further concealment of the Unlawful Acts was practised in Associated’s repeated denials of any form of wrongdoing either by its journalists at its titles or on their behalf, principally in evidence to the Inquiry (see [37]-[42] and [48]-[53] above). In written submissions on the Claimants’ behalf, Mr Sherborne suggested: “by expecting the Claimants to disregard these vehement denials, including those made under oath by senior executives at the Leveson Inquiry, and bring claims against [Associated] in the face of unyielding denials of wrongdoing, the Defendant’s position on limitation is logically, factually, and legally incoherent”. In response to Associated’s contention that its extensive use of private investigators was well known at least from the publication of the ICO report, “What price privacy?”, the Claimants argue that both in evidence to the Inquiry and subsequently, Associated’s position was that the use of such private investigators was to carry out lawful inquiries. To the suggestion that, to the extent that any private investigators carried out any Unlawful Acts, Associated had no knowledge of them, the Claimants point to the importance of the evidence that they have recently obtained, from the key private investigators, which enables them to challenge Associated’s case.

Mr Sherborne does not challenge the facts that there had been widespread publicity of phone-hacking at the newspapers of NGN and MGN, but there was nothing (beyond speculation) to link the wrongdoing at these newspapers and those published by Associated. The Claimants rely on observations by Fancourt J, in the NGN phone-hacking litigation, that “knowledge about phone-hacking practices generally through media coverage does not equate to realisation that a person was themselves a victim of phone-hacking” ( [2022] EWHC 891 (Ch) [91(6)]). Those remarks were made in the context of widespread media coverage of litigation over phone-hacking at NGN, in respect of those bringing fresh claims against NGN. There has been no such coverage concerning Associated.

On behalf of the Claimants, it is argued that they did not benefit from any finding or notification by a regulatory or investigatory body – as happens in many cartel or competition cases. In the context of these claims, Mr Sherborne relied upon Mann J’s observations in earlier phone-hacking litigation against NGN (albeit in the context of a Norwich Pharmacal application against the Metropolitan Police) that “what distinguishes the phone-hacking cases from most claims is that the victims (claimants) are unlikely to know that they are victims until someone else… tells them…” ([2014] 1 Ch 400 [62]). Here, Mr Sherborne submits, none of the Claimants was contacted or notified about Associated’s alleged wrongdoing by (1) Associated; (2) the Inquiry; (3) the police; (4) the Information Commissioner; or (5) the Press Complaints Commission (or the Independent Press Standards Organisation as it later became). Instead, it is argued, the Claimants have themselves uncovered what is alleged to be “concealed and systemic wrongdoing” by Associated.

Based on the Claimants’ witness statements, Mr Sherborne submitted that the ‘trigger’ that led each Claimant to investigate whether they had a worthwhile claim happened long after October 2016.

In his written submissions on behalf of the Claimants, Mr Sherborne advanced a detailed rebuttal of Associated’s case that each Claimant knew of, or with reasonable diligence could have discovered, the concealment of the claims that each now brings. I am not going to lengthen this judgment, by setting out the detail of these submissions. I have considered them carefully, but having regard to the decision I have reached, it is not necessary for me to go into the detail. Resolving the factual disputes on this evidence would be a matter for trial.

Decision

This is a summary judgment application. As such, my task is not to resolve disputed issues of fact. It is to assess the evidence and to determine whether the Claimants have a real prospect, at a trial, of overcoming a defence of limitation advanced by Associated. If there are material disputes of fact to be resolved, the proper place for that is at trial. As it is common ground that the relevant period of limitation for the claims has expired, if any particular Claimant’s claim is to proceed, and not be disposed of summarily on the grounds of limitation, the relevant Claimant must show that s/he has a real prospect of demonstrating that there was concealment of relevant fact(s) by Associated that s/he did not (and could not with reasonable diligence) discover prior to October 2016. Although there is significant overlap between the position of each Claimant, and some of the evidence is common to each of them, the Court must consider each claim separately.

As I have already noted (see [107]), the Limitation Application has been made before the Defendant has filed a Defence, raising the issue of limitation; perhaps more importantly, before each Claimant has filed a Reply setting out his/her case on s.32; and before the Defendant has responded in a Rejoinder (which would almost certainly be necessary). The Court lacks, therefore, even the focused articulation of the parties’ respective cases and the clarity that brings to the issues in dispute. Instead, I have been confronted with an unstructured presentation of substantial evidence contained in the rival witness statements. There may well be straightforward and obvious cases, where it is plain that a claimant is not going to overcome a limitation defence, but these cases are not amongst them.

For the reasons I shall explain in the remaining section of this judgment, I have (ultimately, without difficulty) reached the conclusion that each Claimant does have a real prospect of overcoming a limitation defence (if such a defence is ultimately relied upon by Associated). In other words, I consider that each Claimant has a real prospect of demonstrating concealment by Associated that was not (and could not with reasonable diligence have been) discovered by the relevant Claimant before October 2016. At each stage of the inquiry required by s.32, the Court would be required, at trial, to determine the factual position (drawing inferences upon the evidence where appropriate and justified). In anything but a plain and obvious case, where a knockout blow can be delivered, resolution of the factual issues necessary to resolve whether a defendant can defeat a claim on the grounds of limitation will require the court to ascertain the relevant facts. As Males LJ observed in OT Computers [47], they are “questions of fact and will depend on the evidence” (see also his comments in Canada Square Operations Ltd ([89] above)). Ascertaining the facts, following consideration of disputed evidence, is to be done at a trial, not on a summary judgment application.

Associated has not been able to deliver a ‘knockout blow’ to the claims of any of these Claimants. Fair resolution of any limitation defence – and any reliance on s.32 in opposition to it – must await trial. Although not binding on me as a matter of precedent, I can only echo Andrews LJ’s succinct summary (see [82] above).

Concealment

In my judgment, each Claimant has a real prospect of demonstrating that Associated (or those for whom Associated is responsible) concealed from him/her the relevant facts upon which a worthwhile claim of Unlawful Information Gathering could have been advanced. Whilst it is common ground that the publication of any Unlawful Articles was not concealed, these were (on the Claimants’ case) only the tip of the iceberg. What was deliberately hidden from the Claimants – if they are correct in their allegations – were the underlying Unlawful Acts that are alleged to have been used to obtain information for subsequent publication. The Claimants, as they accepted at the hearing, cannot maintain a free-standing cause of action for misuse of private information based on the publication of the Unlawful Articles. Any such claim is time barred and was not concealed from any of the Claimants.

The claims for misuse of private information based on the obtaining of the information that was later published in the Unlawful Articles are materially different. Each Claimant’s case in this respect is based on various strands of evidence, nearly all of it disputed by Associated. Some of those strands are common to all Claimants and are advanced to support an inferential case about the existence and extent of Unlawful Acts that it is alleged were practised at Associated. But the Claimants also rely upon specific alleged Unlawful Acts, some of which relate to specific Claimants (even, in some instances, identifying particular stories). I deal with the case of each of the Claimants in specific sections below ([217]-[248]).

The starting point, for the issue of concealment, is that if the Claimants are correct that they were the subject of the Unlawful Acts then these were, in their nature, concealed from the Claimants. That was the whole point. Each Unlawful Act used to obtain the relevant information about a Claimant (or his/her contacts) depended, for its effectiveness, upon concealment from (at least) the relevant Claimant (see observations of Mann J quoted in [184] above). Whilst Associated denies the Unlawful Acts, I do not understand it to challenge this proposition, and I am satisfied that the Claimants have at least a real prospect of demonstrating it at trial.

In my judgment, the Claimants also have a real prospect of demonstrating that there was further active concealment by Associated which made it correspondingly less likely that any of them was (or should have been) put on inquiry that s/he had a claim worth investigating. In Section F(5) ([37]-[55] above), I have set out the significant parts of Associated’s evidence to the Inquiry. The Claimants are entitled to point to the fact that this was evidence given on oath. Qualitatively, therefore, it is of a different order from, for example, a formulaic denial of wrongdoing published in a press release. The Claimants summarise this evidence, given to the Inquiry by some of Associated’s most senior executives, as a comprehensive and robust (in places even furious) denial of any wrongdoing. That is not a fanciful submission. In a letter from its solicitors, dated 11 August 2022, in respect of Baroness Lawrence’s claim, Associated continued to reject her claim and stated this:

The Court is in no position, on the Limitation Application, to determine whether any of the evidence given to the Inquiry was false (or was known to be false). At this stage of the litigation, none of the Claimants is alleging that any of Associated’s witnesses at the Inquiry gave evidence s/he knew to be false. Those who gave evidence to the Inquiry, on behalf of Associated, are entitled to the same rigorous approach that the Court would insist upon when a serious allegation of wrongdoing is made during litigation, including strict evidential requirements, before such allegations can be pleaded and advanced (as adverted to in the letter of 11 August 2022). Nevertheless, in rebuttal of the limitation defence, it is an important part of the Claimants’ case on concealment that there were, what they characterise to be, comprehensive and steadfast denials of any wrongdoing by Associated’s witnesses at the Inquiry (and subsequently). Several of the Claimants have claimed in their evidence that they were misled by these statements. The Claimants contend that the evidence upon which they intend to rely will show that those denials were not correct.

There was some criticism levelled at Associated by the Claimants that witnesses at the Inquiry had attempted to conceal the extent of Associated’s use of private investigators. That criticism was misplaced. As made clear in Ms Hartley’s evidence for the Limitation Application, it is quite clear from the evidence, and indeed the Inquiry Report, that the extent of use of private investigators by newspapers generally, including Associated, was a significant focus of the Inquiry. Associated’s evidence to the Inquiry had been candid about the extent of that use. A criticism that may have more substance is the contention that Associated had initially taken the position that the evidence of Mr Whittamore’s activities failed to demonstrate prima facie evidence that some of the inquiries were likely to be breaches of s.55 Data Protection Act 1998, and only reluctantly subscribed to the agreed position taken by the Core Participants on the issue. In other words, Associated’s public stance was that there was no evidence to suggest that Associated journalists had obtained information from Mr Whittamore which they knew had been obtained unlawfully. That was consistent with the evidence given by Associated to the Inquiry, particularly by Mr Dacre, that Associated did not engage in any form of Unlawful Information Gathering.

Finally, in my judgment, the Claimants have a real prospect of demonstrating not only that the Unlawful Acts themselves were concealed, but also, in many instances, further devices were employed in the published articles to throw the subject ‘off the scent’ (see [181] above). Several Claimants complain that they believed that their confidences were being betrayed by people close to them. Depending upon what the evidence shows, this may be a significant factor on the issue of both concealment and the point at which any Claimant could have been expected to begin investigating whether, in fact, the true source of private information appearing in articles was Unlawful Information Gathering, rather than treacherous friends. Consideration of the particular Unlawful Articles relied upon by any Claimant, and his/her belief as to the source of the information, would be a matter for trial.

On the issue of concealment, my conclusion is that each Claimant has a real prospect of demonstrating that the facts relevant to the claims that they now bring were concealed from him/her by Associated. Ultimately, if issues of disputed fact require to be resolved, the proper place to do so is at trial not on a summary judgment application.

Actual knowledge

I do not detect that Associated has made any real challenge to each Claimant’s evidence that s/he did not have actual knowledge that s/he was the target of Unlawful Acts (as distinct from publication of the Unlawful Articles). Mr Beltrami KC did make some efforts to suggest, in some cases, that the relevant Claimant must have known, at least in broad terms, that s/he was a target for Unlawful Information Gathering prior to October 2016. In my judgment, however, if such a case is to be advanced, it could only be fairly resolved at trial after the relevant Claimant’s denial of actual knowledge has been tested. It will be very important, at trial, to identify precisely what each Claimant is alleged to have known. There is a danger in generalisation to which the Court will be alive at any trial.

Constructive Knowledge

The real battle ground, on the Limitation Application, is the issue of whether each Claimant could, with reasonable diligence, have discovered the concealment of the relevant facts to support the Unlawful Acts claim before October 2016.

Ultimately, at any trial at which this issue fell to be resolved, the burden of proof would rest on the relevant Claimant. At the summary judgment stage, s/he is required to show that there is a real prospect that s/he will succeed in discharging this burden.

Associated’s principal argument is that each of the Claimants could (and should) have advanced the claim they now pursue prior to October 2016. If looked at, simply, as an assessment of the individual facts now relied upon by each Claimant, there is superficial force in this submission. It is, of course, true that the Claimants could have assembled some of the facts, upon which they now rely, at a point well before October 2016. For example, Associated’s extensive use of private investigators would have been apparent to any reasonably diligent claimant from the point at which the ICO Reports were published in 2006 (see Section E(1): [19]-[22] above).

In my judgment, however, the Claimants have a realistic prospect of persuading the Court, at trial, that this overlooks the reality of what confronted them and applies a large dose of hindsight or reverse engineering. Once the evidence of the private investigators became available, it permitted a reappraisal by the Claimants and their advisors of the value of earlier pieces of evidence which, if analysed in isolation, would have been of limited (or no) probative value. I will shortly come to the separate analysis of the position of each Claimant, but there are some general matters which are common to each of them, that it is convenient to address first.

The broad case advanced by the Claimants is that, whatever an individual Claimant’s level of suspicion as to Unlawful Activities (and this varied, Claimant by Claimant), there was a ‘watershed’ moment for the Claimants when Mr Burrows (and other key private investigators) stepped forward to give a detailed account of what each alleged he had done for Associated. The evidence that the private investigators provided to the Claimants had different elements. It includes evidence upon which the Claimants have relied to support their generic case as to the prevalence of Unlawful Information Gathering by Associated and, from that foundation, to support an inferential case that the relevant Claimant was the target of Unlawful Acts which, for most Claimants, also resulted in the publication of Unlawful Articles by Associated. But the private investigators’ evidence also includes evidence that individual Claimants were specific targets for Unlawful Acts by those working for Associated and also, in a few cases, evidence of particular incidents concerning some of the Claimants. In that latter category falls Mr Burrows’ evidence, upon which Ms Hurley relies, that she was targeted by him for Associated for interception of her landline telephone (see [145] above).

Associated challenges that there was, in reality, any ‘watershed’ moment for the Claimants. Its case is that the Claimants had sufficient information to plead the case now advanced – at least in broad outline; the “bare but essential bones” – before October 2016. The evidence of the private investigators (which Associated disputes) should be regarded as merely providing further support to a claim that could have been pleaded many years before October 2016.

The short answer to this is that these rival contentions cannot be fairly resolved by the Court on a summary judgment application, and (if a limitation defence is ultimately relied upon in any Claimant’s case) will require proper investigation of the evidence at a trial.

The longer answer is that the Claimants have, in my judgment, a real prospect of demonstrating that, prior to learning of the evidence provided by the private investigators (identified above), each of them did not have a viable or worthwhile claim. Even if I felt that I had sufficient evidence to embark on the exercise (which I do not), it would not be appropriate on a summary judgment application to make findings of fact on disputed evidence as to whether (and if so at what point) each Claimant did suspect (or should have suspected) that Unlawful Information Gathering was practised at Associated. But even that fact would not be sufficient. To have a worthwhile claim, the relevant Claimant must additionally believe that s/he has a worthwhile claim that s/he was a victim of such Unlawful Information Gathering. And even then, there is a material difference between a person suspecting that they may have been the victim of some wrongdoing, and a person having a reasonable belief that s/he has been the victim of a particular wrong: Gemalto [45]. For the purposes of s.32, a viable or worthwhile claim is the latter, not the former. On the facts of the typical claim brought by these Claimants, it is the difference between suspecting that information that has appeared in a published article must have been obtained unlawfully and knowledge of facts (even if incomplete) that enable a claim of particular wrongdoing to be articulated.

In my judgment, the Claimants have a real prospect of persuading the Court, at the trial of any limitation defence, that a statement of case that advanced a claim of Unlawful Information Gathering, on a wholly inferential basis, relying simply on the facts (a) of the prevalence and notoriety of the practice of Unlawful Acts at some other newspapers; (b) that journalists who had worked for those newspapers moved to work for Associated; (c) of extensive use of private investigators by Associated journalists (as uncovered by the ICO); (d) that each of the Claimants was a public figure and was therefore of interest to Associated journalists and, if there were Unlawful Acts, s/he could well have been the target of such acts; and (e) (save for the claim brought by Sir Simon Hughes) of publication of the Unlawful Articles that contained private information about them the source of which was unexplained; would have been summarily dismissed as speculative and lacking substance.

In advancing that argument at any trial, it would be open to each Claimant to submit that a claim advanced on this purely inferential basis would have been vigorously defended and characterised by Associated, on an application to dismiss the claim, as “purely speculative”. It is perhaps noteworthy that Associated’s solicitors’ letter of response, dated 22 April 2022, dismissed Baroness Lawrence’s claim as “no more than speculative”. Although each Claimant was not advancing a cause of action that included fraud or dishonesty – in terms – for all practical purposes they would have faced a very similar obstacle (with the consequences identified by Marcus Smith J in Bilta (UK) Ltd [31(7)(h)]).

In all probability, Associated could have been expected to rely upon the fact that Associated executives had given evidence, on oath, in the Inquiry, that there was no evidence that Associated was guilty of the sort of wrongdoing that had been practised at other newspapers. In light of Associated’s historical response to similar allegations, it is not fanciful to suppose that Associated might well have described the Claimants’ claims as “mendacious smears” and robustly criticised and attacked the speculative basis on which they had been brought. Set against the sworn testimony of Associated’s senior executives, each Claimant, it would have been argued, was under a heavy burden to show that this evidence was false.

It is not fanciful to suggest that, without clear allegations that specific people working for Associated had been guilty of Unlawful Acts, the Claimants would have been very vulnerable to the charge that they were ‘fishing’ for a case on a wholly speculative basis. As the Master of the Rolls noted in Gemalto [46], “a claim in respect of a concealed event would not be a worthwhile one if it were pure speculation”. Associated argues that the “bare bones” that the Claimants had, in terms of facts that they could plead, mean that such a claim would not have been “pure speculation”. That submission can only fairly be resolved at a trial, on a Claimant-by-Claimant basis, where all the evidence has been considered.

Having regard to all those factors, I am satisfied that there is a real prospect that the Claimants could, at trial, and following proper consideration of all the evidence, persuade the Court that Associated would have been successful in striking out or dismissing a claim brought on that purely inferential basis.

I therefore accept the Claimants’ submission that they have a real prospect of demonstrating that the arrival of the evidence and information from the private investigators was the moment at which they discovered that they had a worthwhile claim to bring against Associated; one that would not get struck out or dismissed summarily.

I also accept that the Claimants have a real prospect of demonstrating at a trial that they could not have discovered the information they learned from the private investigators, with reasonable diligence, at a point earlier than October 2016. That is a separate evidential inquiry. It has several stages. First, was there something that could reasonably have alerted the Claimants to the identity of the relevant private investigators and that they might have information that disclosed potential claims against Associated? Second, at what point could (and should) the Claimants have made inquiries with the private investigator? Third, what would the Claimants have discovered, had they made the inquiry with the relevant private investigator at that earlier point?

On this Limitation Application, the evidence simply does not enable the Court to answer these questions. It is not a question, as Associated submitted, of the Claimants having to discharge a burden on a summary judgment application. An overall assessment of the evidence – including areas where there presently is a lack of evidence – leads me to the conclusion that the Claimants have (at least) a real prospect of defeating any limitation by reliance upon s.32.

In the final part of this section of the judgment, I will consider the case of each Claimant individually to determine whether the evidence in his/her case compels a different conclusion.

Baroness Lawrence

Although no doubt a public figure, Baroness Lawrence is not a ‘celebrity’. Associated’s case that the Claimants should have been aware that they were potentially the targets of Unlawful Information Gathering is therefore likely to carry less weight against Baroness Lawrence. She has stated in her evidence that, prior to the information she received from PI1, she did not ever suspect that she had been the target of Unlawful Information Gathering. She did not pay much attention to the phone-hacking scandal because she did not believe that it had anything to do with her. Baroness Lawrence’s evidence is that, although she was aware of the four Unlawful Articles she has identified in her Particulars of Claim, she thought that the information contained in them had been leaked by sources in the police. Associated cannot, and does not, ask the Court to disbelieve this evidence on a summary judgment application.

Baroness Lawrence’s evidence on the Limitation Application is that she first became aware that she might have been the target of Unlawful Information Gathering in January 2022. When she learned that PI1 had claimed to have tapped her landline telephone, hacked her voicemails, blagged her telephone bills, placed her under covert surveillance and made corrupt payments to police officers, she “could not believe what [she] was hearing” (see also [123] above). This evidence provides Baroness Lawrence with a real prospect of demonstrating that she was not aware of the acts of Associated that are now the subject of her claim before January 2022. Associated has not identified the earlier point at which a reasonably diligent claimant, in Baroness Lawrence’s position, had information that would have put her on inquiry to investigate whether she had been the target of Unlawful Information Gathering by Associated. She was aware, in general terms, of the phone-hacking scandal, but, as confirmed by Mr Khan KC, she did not think such activities had anything to do with her or Associated.

The high-point of Associated’s evidence is, perhaps, DCI Driscoll’s suggestion, in a book published in 2015 for which Baroness Lawrence wrote the foreword, that one of the Unlawful Articles might have been the product of phone-hacking (see [125]-[126] above). In my judgment, at this stage, this evidence falls into the category, at best, of possible cross-examination material for Baroness Lawrence. It is very far from a ‘knock-out’ blow. There are several obvious questions that would arise in relation to the passage in DCI Driscoll’s book, that would have to be answered by reference to the available evidence at trial. First, assuming that Baroness Lawrence did read the book (as suggested in the foreword), what did she understand this passage to mean? Did she think that DCI Driscoll considered that she had been the target of phone-hacking or that he (or other officers) had been? The phrase used by DCI Driscoll is “we could have been victims of the phone hacking scandal”. Did Baroness Lawrence think that she was included in the “we”? Had she thought she was, then this would contradict her very clear evidence that the revelations, in 2022, implicating Associated in Unlawful Acts had come as a complete surprise to her.

Similarly, Baroness Lawrence’s general knowledge of police corruption may be a point upon which Associated will rely in any case of constructive knowledge, but this is also an issue that can only fairly be resolved at a trial. First, even if Associated could establish a case of constructive knowledge of corrupt payments to police officers to provide information about Baroness Lawrence, depending on the overall assessment of the evidence, that might only preserve the limitation defence in respect of that specific Unlawful Act. Second, the Court may well be satisfied that there is a material difference between Baroness Lawrence’s belief or suspicion that corrupt police officers leaked information about her and suspecting that journalists from a national newspaper were involved in the supply of that information by procuring and paying for it.

I cannot judge, now, what assessment the Court will make of Baroness Lawrence’s evidence at any trial, and the evidence available to the Court now may well only be a fraction of the total evidence upon which the Court will ultimately make the decision. At this stage, I can conclude that she has a real prospect of resisting a limitation defence relying upon s.32.

Elizabeth Hurley

Ms Hurley has given evidence that she first became aware of allegations that she had been the target of Unlawful Information Gathering just before Christmas 2020, when she learned of Mr Burrows’ claims, evidence which is corroborated by Mr Grant. Associated cannot, and does not, ask the Court to disbelieve this evidence on a summary judgment application.

Mr Burrows’ evidence is hotly disputed by Associated. He has provided a statement to Associated denying that he carried out unlawful information gathering on Associated’s behalf (see [139]-[140] above). At this stage, I cannot resolve the conflict between Mr Burrows’ witness statements. For present purposes, the issue is not whether what he told the Claimants and Ms Hurley around Christmas 2020 was true, but whether Ms Hurley could reasonably have been expected to have realised, before October 2016 and before Mr Burrows’ revelations, that she had a claim against Associated for Unlawful Information Gathering that needed to be investigated.

Associated’s case of constructive knowledge against Ms Hurley relies principally on the fact that she had been identified, as early as 2011, as a victim of phone-hacking by NGN. She was also a target for Mr Whittamore. From that, it is argued, Ms Hurley should have realised that she may well have been a target of similar unlawful activities by journalists or agents of Associated. Whether Ms Hurley should have been put on inquiry, at a point earlier than October 2016, to investigate whether she had been the subject of Unlawful Information Gathering by Associated is ultimately a question of fact, as is what she might have discovered had she carried out such investigations. On the question of whether Ms Hurley, by reason of the unlawful acts of MGN and NGN to which she was subject, should have suspected that Associated would be similarly guilty engages consideration of Associated’s steadfast denials to the Inquiry that it was similarly guilty.

Even if Ms Hurley had thought that Associated might have hacked her voicemail, in a manner similar to MGN and NGN, inquiries she made targeting possible voicemail interception might not have led her to discover the full extent of the Unlawful Acts identified in the information that was subsequently to be provided by Mr Burrows. The evidence Ms Hurley has given in her witness statement very much suggests that she was someone who was attentive (although perhaps not to the extent of Mr Grant) and that she did take steps to investigate when she was presented with information that she had been subject to any wrongdoing. At this stage, I am satisfied that Ms Hurley has a real prospect of demonstrating to the Court at any trial that if she had suspected, at any stage prior to Christmas 2020, that she had been subjected to Unlawful Information Gathering by Associated, she would have set about investigating that. The test of reasonable diligence is, of course, objective, but it will be for Associated to point to the matters which it says would have alerted the notional claimant in Ms Hurley’s position of the need to investigate at a point prior to October 2016.

For example, Associated has contended that Ms Hurley could, with reasonable diligence, have discovered that evidence seized during Operation Motorman suggested that she had been targeted by a journalist employed by The Mail on Sunday. But even if this were to be accepted (and Ms Hurley’s evidence is that when she made a subject access request to the ICO she did not receive anything that indicated the involvement of Associated journalists – see [131] above), that would not have provided a sound basis on which Ms Hurley could conclude that she had a viable claim and launched the claim that she now pursues. Associated has consistently adopted the position that proof of use of private investigators does not amount to proof of wrongdoing by Associated’s journalists. To have a viable claim, a claimant would have to demonstrate something more than mere use of private investigators (or “inquiry agents” as Associated styled them).

The Court carrying out that exercise would have to assess Ms Hurley’s evidence that, in summary, her learning of Mr Burrows’ evidence around Christmas 2020 was a ‘watershed’ moment which first put her on inquiry as to whether she had been a target of Unlawful Information Gathering by Associated. Associated can probe and challenge Ms Hurley’s evidence to advance its case that, judged objectively, she could with reasonable diligence have discovered the facts of the Unlawful Information Gathering sooner than she did. Without a trial, I am in no position to make the findings of fact that would lead the Court to reject Ms Hurley’s reliance upon s.32.

Sir Elton John and David Furnish

Sir Elton and Mr Furnish have both given witness statements. They say that they learned, for the first time, of Mr Burrow’s claims of his involvement with Unlawful Information Gathering for Associated in early 2021, having been alerted by Ms Hurley. Their response was to contact their lawyers and commission investigations into his claims. Both say that Mr Grant had not shared any suspicions he may have had about whether Associated was also engaged in Unlawful Information Gathering. Mr Furnish is one of the Claimants who watched Mr Dacre giving evidence at the Inquiry. He says that he believed Mr Dacre’s “unequivocal and very strenuous denials” that the sort of wrongdoing that had been uncovered at NGN had been practised also at Associated. Associated cannot, and does not, ask the Court to disbelieve this evidence on a summary judgment application.

Associated’s case against Sir Elton and Mr Furnish has a basis similar to that advanced against Mr Hurley. Both Claimants were involved in earlier claims against MGN for phone-hacking, they were celebrities in the public eye who were therefore potential targets for Unlawful Information Gathering and they were close friends of Mr Grant, whom they could have asked about his beliefs and suspicions about Unlawful Information Gathering by Associated. It is not clear to me, on this hypothesis, what Associated contends Mr Grant would have told Sir Elton and Mr Furnish had they asked him. In his witness statement for the Limitation Application, Mr Grant rather gives the impression that he would have said that, whilst he had his own suspicions about whether Associated was involved in Unlawful Information Gathering, he lacked proof. Had he conveyed that information to Sir Elton and Mr Furnish, it might be argued that it would hardly have provided a basis on which to launch a worthwhile civil claim. But, again, these are matters of fact-finding, upon potentially disputed evidence, which can only be carried out fairly at a trial.

Associated has criticised Sir Elton and Mr Furnish for not giving a “full account”, in their statements, of their knowledge of media reporting of Unlawful Information Gathering by certain newspapers. I reject that criticism, which has an air of unreality about it. Sir Elton and Mr Furnish, and the other Claimants, have been confronted with a summary judgment application asking the Court to dispose of their claim without a trial, on the ground of limitation, before even service of a Defence in which that defence is raised.

Associated is well aware, both in this litigation, and from litigation against other publishers faced with similar allegations, that any limitation defence is highly likely to be met with reliance upon s.32. Associated has filed voluminous evidence in support of the Limitation Application. If the criticism levelled at the Claimants is rooted in a contention that they should have filed the sort of evidence they might have been expected to file before a trial, I reject that. Summary judgment applications are not a way of expediting a trial, bypassing all the usual phases of civil litigation. Equally, they should not be used as an attempt to flush out, at an early stage, the key evidence upon which the opposing party might rely.

Each Claimant has filed evidence stating when s/he first became aware that they might have a claim against Associated for Unlawful Information Gathering. As I have noted, Associated has made no real attempt to impeach this evidence. The battle ground is whether each Claimant could have discovered a viable claim at an earlier point. I have already set out, in some detail in this judgment, why that exercise is highly fact sensitive and unlikely – save in plain and obvious cases – to be suitable for summary judgment.

I recognise, of course, that, under s.32, it is for each Claimant to prove that s/he could not with reasonable diligence have discovered the relevant facts prior to October 2016, but this is to require them to prove a negative. In such circumstances, as is commonplace, the effective burden passes to the party asserting the alternative positive case. In other words, the evidential burden is likely, at any trial, to fall on Associated to identify the facts upon which it relies to demonstrate that the relevant Claimant (applying the objective test) could with reasonable diligence have discovered the relevant facts.

Associated argued that several of the Unlawful Articles now sued upon by Sir Elton and Mr Furnish were written by journalists who had previously been employed by NGN, and others had been written by journalists who had been “publicly implicated” in Unlawful Information Gathering at the time of the Inquiry. In my judgment, this argument is particularly vulnerable to the charge that it involves application of significant hindsight or reverse engineering. It also rests on an implicit suggestion that, because someone who has worked previously for a newspaper that has been guilty of phone-hacking, or because someone has been accused of phone-hacking (or “implicated”, whatever that means in this context), this is a basis upon which the person can be alleged in Particulars of Claim (to be verified with a statement of truth) to be guilty of Unlawful Information Gathering. It may well be that Associated itself will challenge both premises in this litigation, but the proper place to test this, and any other arguments, is at a trial as part of the consideration of all the evidence.

There is a further point. Associated knows who these journalists are. It has not been suggested that there is any difficulty in contacting any of them. If it is valid criticism of the Claimants that they have failed to provide all the evidence relevant to the Limitation Application, Associated might have to accept that it is potentially open to criticism that it, too, has not provided all the evidence that might assist in the resolution of the s.32 issue.

The inquiry under s.32 embraces not only whether the Claimants could reasonably have been expected to have carried out investigations at an earlier point, but also what they could have been expected to find if they had done so. I do not know – because I do not have evidence from them – what each of these journalists would have said if s/he had been approached by the Claimants (or their representatives) following the Inquiry, and asked, for example, how s/he had obtained the personal information relating to the relevant Claimant that was published in a particular article. Looking ahead, it may well be that at least some of these journalists might be called to give evidence at a trial. If Associated relies upon a limitation defence, the Court will be able to determine the answer to this, and other relevant questions, based upon the totality of the evidence presented by the parties.

Sir Simon Hughes

In his witness statement for the Limitation Application, Sir Simon has stated that it was not until early 2022 that he knew that he “might have the basis” for a claim for Unlawful Information Gathering against Associated. As I have noted ([157] above), Associated have suggested that Sir Simon’s words have been “carefully crafted” and leave open the possibility that Sir Simon had information that would have enabled him to bring a claim of some sort at an earlier point. To the extent that this represents a challenge to Sir Simon’s evidence, the only place to resolve that issue would be at a trial.

More generally, Sir Simon’s evidence is that, although he brought and, in February 2012, settled civil proceedings against NGN for phone-hacking, nothing that he learned in those proceedings suggested that Mr Mulcaire had been hacking phones for any other newspaper. In support of its case of constructive knowledge against Sir Simon, Associated has argued that, at a point prior to October 2016, Sir Simon Hughes was a Core Participant in the Inquiry and he could have asked Mr Mulcaire about entries in his Notebooks that suggested that he may have been a target by Associated, indeed this allegation is now pleaded in the Particulars of Claim. Sir Simon has stated in his evidence that he was unaware until recently that there was evidence in the Mulcaire Notebooks that could implicate Associated in Mr Mulcaire’s activities. It was Mr Mulcaire who had drawn to his attention the significance of some of the entries in his Notebooks.

Taking this simple example of what inquiries Sir Simon could have been expected to have made with Mr Mulcaire, prior to October 2016, that is not something I can resolve without hearing evidence from the relevant witnesses. At present, there is no evidence from Mr Mulcaire (or anyone else) which sheds light on what Mr Mulcaire would have said in response to inquiries raised with him on Sir Simon’s behalf. And this is just one facet of the wider factual inquiry that would be required fairly to adjudicate on any limitation defence in his case. Again, the analysis of what the Mulcaire Notebooks contained, what they showed, and the extent to (and the point at) which Sir Simon was (or should have been) aware that it suggested that Mr Mulcaire had also acted for Associated journalists in targeting him, is evidence that can only be assessed and tested at a trial.

The same is true for what Sir Simon said on the Andrew Marr Show (and more importantly what he meant, and what it revealed about his state of knowledge and belief). Sir Simon has given his explanation in his witness statement (see [159]-[160] above). Likewise, the emails referred to at Mr Coulson’s trial, of which Sir Simon denies knowledge (see [162(3)] above). To the extent that Associated wishes to challenge any of this evidence, it will have an opportunity at trial.

The incident involving HJK, in April 2006, on the evidence as it stands now, raises more questions than it answers. HJK was a target of interest for more than one newspaper. HJK believed, and gave evidence to the Inquiry, that his address had been blagged and his voicemails had been hacked by Mr Mulcaire. Sir Simon has said in his evidence that, although a Core Participant, he did not see HJK’s evidence to the Inquiry. Associated contends that even if that is right, Sir Simon could have separately known the substance of HJK’s account, and, further, that he could have asked HJK about it. The connection with Associated, beyond Mr Mulcaire, is the fact that Sir Simon knew, in 2006, that HJK had been approached at his home address by a journalist from Associated.

None of Associated’s points on the evidence is a ‘knock-out’ blow. Even assessed cumulatively, they do not render fanciful Sir Simon’s resistance of any limitation defence. Whether Sir Simon is successful in reliance upon s.32 is a matter to be adjudicated at trial.

Prince Harry

In his witness statement, Prince Harry has stated that he first learned that he was alleged to have been the target of Unlawful Information Gathering by Associated in 2019, after he brought his claims against NGN and MGN. He explained what he learned, and from whom, in his witness statement (see [163] above). Associated cannot, and does not, ask the Court to disbelieve this evidence on a summary judgment application.

As to constructive knowledge, Associated’s case against Prince Harry is that, given his position and profile, the fact that his suspicions had been aroused by the behaviour of journalists and information that was published, and his general awareness of phone-hacking by NGN, he could with reasonable diligence have discovered sufficient facts to bring a claim for Unlawful Information Gathering against Associated before October 2016. As to specific matters of evidence, the high point of Associated’s submissions seems to be that, as Prince Harry had watched Mr Dacre giving evidence to the Inquiry, he would have been aware that suggestions were made to him in his evidence that Associated was also involved in Unlawful Information Gathering. That analysis rather ignores the fact of Mr Dacre’s firm denials in the same testimony of any suggestion of wrongdoing at Associated, to which Prince Harry says he did attach importance, but I have dealt with the more general point already (see [234]). This is a summary judgment application, and it may be that the point may be developed by Associated further at a trial, but at this stage it did not seem to me to be one of Associated’s strongest points, and it is certainly not a ‘knock-out’ blow. The assessment of the cogency of this submission (and others) on the evidence is a matter for trial.

Ms Frost Law

Ms Frost Law’s evidence on the Limitation Application is that the first time she learned about an Unlawful Act, for which Associated was alleged to be responsible, was, in 2019, from emails that suggested that voicemails she had left had been intercepted. She obtained information about further alleged Unlawful Acts in 2020. Associated cannot, and does not, ask the Court to disbelieve this evidence on a summary judgment application.

As with the other Claimants, Associated’s focus has been upon the constructive knowledge that it contends Ms Frost Law had, and her ability to commence a civil claim against Associated before October 2016. Some of the evidence relied upon by Associated is similar to that relied upon in respect of other Claimants, and is inconclusive on the Limitation Application for the reasons I have explained earlier. Ms Frost has also brought civil claims against NGN and MGN for hacking and, of the Unlawful Articles upon which she relies, several of them were written by journalists who had worked for NGN and had been publicly “implicated” in Unlawful Information Gathering.

Nevertheless, in Ms Frost Law’s case there are also significant pieces of evidence. She accepts that a note from the Mulcaire Notebooks, disclosed in the NGN litigation, associated her name with the words “Mail on Sunday”. Associated argue that, even if she missed the significance of that evidence at the time, with reasonable diligence it should have caused her to investigate whether Mr Mulcaire had also targeted her for Unlawful Information Gathering on behalf of Associated. Similarly, although it was not until 2019 that Ms Frost Law appreciated the importance of the email exchanges (and what potentially they showed in terms of voicemail interception), the documents themselves had been available much earlier.

In my judgment, the state of the evidence relied upon by Associated in Ms Frost’s case is materially different from the other Claimants. In her case, Associated can point to undisputed pieces of evidence in support of its case on constructive knowledge. They may ultimately be found to be very significant on the decision on s.32. However, in my judgment the assessment of this evidence and the totality of the necessary fact-finding that would be required under the section, cannot fairly be carried out in a summary judgment application. As part of the exercise at trial, there would need to be a focus on the available evidence not only of whether there was an earlier trigger that should have put Ms Frost Law on inquiry, but also what she would have discovered if she had investigated. In Ms Frost Law’s case, as with the other Claimants, the answer to that second question is far from certain on the state of the evidence on the Limitation Application. On that issue, Mr Mulcaire’s evidence could well be highly material. It is not available on this application.

For the reasons given in this section of the judgment, I am satisfied that each of the Claimants has a real prospect of relying upon s.32 to defeat any reliance upon a limitation defence by Associated. In consequence, the Limitation Application is dismissed.

Background and Introduction

Earlier in the judgment (see [31] and [34] above), I have set out the circumstances in which Associated came to disclose the Ledgers to the Inquiry. There is no doubt that the Inquiry compelled provision of the Ledgers (and other documents) pursuant to s.21 Notices that were served on Associated.

Associated contends that the Claimants have relied upon information from the Ledgers to plead certain paragraphs in their Particulars of Claim. It contends that such use is as a result of breaches of restrictions, imposed by the Inquiry, on the publication and disclosure of the Ledgers that have not been revoked or varied. Alternatively, Associated argues that use of the Ledgers, by Mr Sherborne, Sir Simon Hughes and Mr Thomson, to plead the Particulars of Claim, is a breach of the CP Undertaking that each of them gave to the Inquiry ([35]-[36] above).

By the Restriction Order Application, Associated seeks the striking out of those parts of the Claimants’ Particulars of Claim which have been based on information taken from the Ledgers. At the hearing, Mr Beltrami KC recognised that an alternative Order would be for the Court to stay the claims until such time as the Claimants have obtained the permission of the Minister to use the documents.

In response, the Claimants have argued that the Ledgers were not the subject of any effective restriction order from the Inquiry. In the alternative, and in any event, the Ledgers have come into the public domain as a result of publication of them by the Online Publisher, and the Claimants argue they are therefore entitled to rely upon them to plead their Particulars of Claim.

There are some further discrete points that have also been raised by Associated on the Restriction Order Application: (1) whether documents have been independently provided by Mr Whittamore; (2) whether references in the Particulars of Claim to journalists at Associated who used the agency ELI/TDI have come from the Ledgers; and (3) whether the name of an Associated journalist alleged to have been interviewed by the police under caution came from a witness statement provided to the Inquiry.

Evidence

Associated’s evidence in relation to the Restriction Order Application is contained in evidence from its solicitor, Nadia Banno. In her first witness statement, dated 5 December 2022, Ms Banno essentially sets out the history of the provision of the Ledgers to the Inquiry and the restrictions that Associated contends were imposed in the restriction orders.The Claimants’ evidence, in response, is provided in a witness statement of Callum Galbraith, dated 6 January 2023. Ms Banno provided a further witness statement, dated 17 January 2023, and Mr Galbraith filed a further statement, dated 20 March 2023. I shall not refer to all the evidence contained in these witness statements (and they contain much by way of argument), just the parts I consider to be relevant and material to the issues that I must decide.

Perhaps the most important evidence is that concerning the publication by the Online Publisher of some of the Ledgers and information derived from them.

Publication of the Ledgers and supply to the Claimants

During 2017, articles were published by the Online Publisher that focused on some aspects of the Inquiry and evidence that was available to the Inquiry about the extent of Associated’s use of private investigators. The articles have remained generally available online since first publication. In analysing the use of private investigators, the articles relied upon data drawn from the Ledgers (some of which were described as “accounting spreadsheets” that had been disclosed by Associated to Part 1 of the Inquiry). In one of the articles the publishers indicated that they had seen “unpublished data” submitted to the Inquiry and referred to questions that they had sent to Associated about the “secret dossier”. One article stated that some of the documents were not easy to interpret because the copies of the relevant Ledgers “provided to the Leveson Inquiry” were printouts in which one column of information was distorted.

Whilst the Online Publisher’s articles do rely, extensively, upon information that has been drawn from the Ledgers, the Online Publisher has not published the Ledgers. It is not the case, therefore, on the evidence, that all (or even most of) the information contained in the Ledgers has entered (or remains available in) the public domain. I reject the Claimants’ submission that confidentiality in all the documents has been exhausted. The extent to which confidential information in the Ledgers has been destroyed by publication by the Online Publisher would, if it were a task that needed to be carried out, have necessitated a careful analysis of precisely what information from the Ledgers had been published.

Associated has complained, in its evidence, that publication of the Ledgers (and information derived from them) by the Online Publisher was “unlawful”. However, beyond sending a complaint to the Online Publisher – on behalf of Mr Dacre, Mr Wright and Ms Hartley alleging that three articles were defamatory of them – Associated (and the three individuals) took no action in relation to the publication of any of the articles, whether by way of civil claim or by complaint about an alleged breach of a restriction order. The Online Publisher has, in correspondence with solicitors acting on behalf of the three complainants, defended the publication of its articles as being in the public interest. As it was not, at that stage, contended that publication of the Ledgers (or information derived from them) was contrary to the Final Restriction Order, this specific allegation was not addressed by the Online Publisher.

Although the Online Publisher attended the hearing, and made some submissions in respect of the Reporting Restriction Application, it has not itself provided any evidence about the articles it has published and particularly how it came to be in possession of the Ledgers. That is not surprising. The Online Publisher is not a party, and, on the grounds of source protection, I would not have expected it to reveal how – or from whom – it had obtained documents and information upon which its articles were based (including at least some of the Ledgers). The Online Publisher has maintained, in its correspondence with Associated, that insofar as it has published information from the Ledgers that is confidential, then any alleged breach of confidence is justified in the public interest.

Nevertheless, simply from the description given to the documents in the articles, it seems more likely than not that these documents ultimately came from someone who had access to them during the Inquiry.That conclusion is fortified by Mr Galbraith’s evidence. He has confirmed, in his first witness statement, that the Ledgers were provided to the Claimants’ solicitors by the Online Publisher, and not (for example) by Sir Simon Hughes. Perhaps most importantly, Mr Galbraith has stated that “the URNs that appear on the face of the Ledgers [provided by the Online Publisher] are not referred to in the [Final Restriction Order]” (emphasis added). Whether or not the Ledgers are subject to a restriction order is a different issue – that I shall come to shortly – but the fact that the copies of the Ledgers that have been provided by the Online Publisher have the Inquiry URNs marked on them provides very strong evidence that the copies that were provided to the Online Publisher, and thence to the Claimants’ solicitors, originally came from the Inquiry and not some other source.

Mr Sherborne raised the possibility that a person at Associated, who had access to copies of the Ledgers bearing the Leveson URNs, might have disclosed them to the Online Publisher. I accept that is a possibility, but as an explanation for how the Ledgers got into the hands of the Online Publisher it is more theoretical (even fanciful) than real.

On the evidence now available to the Court, and on the balance of probabilities, I conclude:

If necessary, and again based on the evidence I have, I would also find that it is more likely than not that the Online Publisher and the Claimants knew that the copies of the Ledgers in their hands had come from the Leveson Inquiry. Indeed, the Claimants do not suggest otherwise. Their principal submission is that the Ledgers are not subject to any continuing restriction imposed by the Inquiry. It is to that issue that I shall now turn.

The Inquiries Act 2005 and applicable legal principles

For the purposes of this judgment, I should set out the key provisions of the Inquiries Act 2005.

Section 18 provides a presumption that the Inquiry would be conducted in public. Specifically, the chairman of the Inquiry was required to take such steps as he considered reasonable to secure that members of the public and media were able to attend the inquiry (or watch simultaneous transmission) and to obtain, or view, a record of the evidence and “documents given, produced or provided to the inquiry”: s.18(1).

Under s.21, the chairman of the Inquiry could issue a s.21 Notice requiring a person:

Sections 19 and 20 of the Inquiries Act 2005 provide as follows (so far as material):

“The Minister”, for the purposes of these sections, is the Minister(s) responsible for the inquiry: s.43(4). A breach of a restriction order could be referred to the High Court for potential contempt of court proceedings: s.36(1)-(2).

A restriction order imposed in an inquiry under the 2005 Act would only apply to restrict disclosure of documents from the inquiry. The Explanatory Notes, to ss.19-20 of the Act, explained:

There appears to be no direct authority on the approach the Court should adopt when considering alleged use of inquiry documents that are the subject of a restriction order under s.19. Nevertheless, restrictions upon the use of documents from an inquiry is very similar to the well-established principles that prohibit collateral use of documents disclosed in litigation.

The key authorities on the prohibition on collateral use (“the collateral purpose rule”) are Riddick -v- Thames Board Mills Ltd [1977] QB 881, 896C-H per Lord Denning MR; Harman -v- Secretary of State for the Home Department [1983] AC 280, 308B-D, F-H per Lord Keith, 314H-315A per Lord Scarman (both decided in the pre-CPR era when the limitation on the use of disclosed documents was derived from an implied obligation rather than the express restriction now found in CPR 31.22); IG Index plc -v- Cloete [2015] ICR 254 [42]-[43] per Christopher Clarke LJ; and Tchenguiz -v- Director of the Serious Fraud Office [2014] EWCA Civ 1409 [56] per Jackson LJ. From these authorities, I draw the following key principles:

More generally, and as a matter of policy, documents and information obtained under compulsion, by the exercise of statutory powers, should not be used for purposes other than those for which the powers were conferred: Marcel -v- Commissioner of Police of the Metropolis [1992] Ch 225, 237B-Eper Sir Nicholas Browne-Wilkinson VC; and Taylor -v- Director of the Serious Fraud Office [1999] 2 AC 177, 212D-E per Lord Hoffmann.

Restrictions on collateral use are imposed not merely in the interests of protecting any confidentiality in the relevant disclosed documents, but principally to protect the administration of justice: Harman , 308Gper Lord Keith; Marlwood Commercial Inc -v- Kozeny [2005] 1 WLR 104 [41] per Rix LJ. There is a public interest in the prohibition on the collateral use of disclosed documents: Lakatamia Shipping Company Limited -v- Su [2021] 1 WLR 1097 [47] per Cockerill J. The restriction applies not only to the documents themselves, but also information derived from the documents: Crest Homes plc -v- Marks [1987] 1 AC 829, 854A-B per Lord Oliver.

Under the former implied undertaking on disclosure, the fact that the documents had entered the public domain did not necessarily release a party who was bound by the undertaking: Sybron Corp -v- Barclays Bank plc [1985] 1 Ch 299, 322D-323B per Scott J.

The Civil Procedure Rules replaced the implied undertaking with an express restriction on the collateral use of disclosed documents. CPR 31.22 provides (so far as material):

The Court of Appeal, in Tchenguiz -v- SFO [66], identified the following general principles when considering the collateral purpose rule:

An action commenced relying upon documents that were subject to a restriction on their use (whether an implied undertaking or restriction imposed by CPR 31.22) may be struck out as an abuse of process: Riddick , 902H-903B per Stephenson LJ, 912Dper Waller LJ.

The Court nevertheless has a discretion to permit collateral use of the documents: CPR 31.22(1)(b); Tchenguiz -v- SFO ; permission that can be granted retrospectively: Miller -v- Scorey [1996] 1 WLR 1122, 1133C-D per Rimer J (circumstances in which it would be proper to grant retrospective permission “would be rare”); and  Lakatamia Shipping [61] per Cockerill J. The Court has no power, equivalent to CPR 31.22(1)(b), to permit use of documents that have been provided in breach of a restriction order imposed under s.19 Inquiries Act 2005. The power to revoke or vary a restriction order is given, during the currency of the inquiry, to the chairman or, after the end of the Inquiry, to the relevant Minister.

There is a separate strand of potentially relevant jurisprudence relating to abuse of process. The Court has an inherent power to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation or where the relevant conduct would otherwise bring the administration of justice into disrepute: Hunter -v- Chief Constable of West Midlands [1982] AC 529, 536per Lord Diplock.

Are the Ledgers the subject of a restriction order from the Inquiry?

I have already set out the restriction orders that were made during the Inquiry (see [66]-[71] above).

The First and Second Restriction Orders

Associated contends that the Ledgers fell within the terms of the First and Second Restriction Orders. The Claimants argue that they do not. The point turns on the construction of the wording of the terms of each Restriction Order.

As noted above (see [34] above), the Ledgers were provided by Associated as part of the evidence submitted in response to the s.21 Notices from the Inquiry. Whilst the Ledgers were not exhibited to any witness statement, they were submitted as part of Associated’s evidence to the Inquiry. In its evidence, Associated has stated that the Ledgers were included in a bundle prepared for the use of the Inquiry when Associated’s witnesses were giving evidence. That evidence has not been challenged by the Claimants.

The Claimants contend that the First Restriction Order could only apply to the Ledgers if they are held to be “part of the evidence of the witness”. Relying upon both the terms of the Restriction Orders, and the explanation as to their purpose and effect in the ruling on 14 May 2012, the Claimants argue that the Ledgers were never part of the evidence of any of Associated’s witnesses.

In my judgment, the Claimants’ submissions are to be preferred. The purpose of the First and Second Restriction Orders was to impose short-term restrictions for the period between Core Participants being provided with the witness statement of an individual and that individual giving evidence at the Inquiry. The practice of the Inquiry was to release into the public domain – via the Inquiry’s website – the witness statements of the witnesses who gave evidence as soon as they had given evidence. That would include publication of the exhibits and other documents that had formed part of a witness’s evidence. The Ledgers, although apparently available to the Inquiry when Associated’s witnesses gave evidence, never formed part of the evidence of any witness. No witness was asked questions about any of the Ledgers, so the relevant documents did not become part of any witness’s evidence.

As the Ledgers never came into the public domain as a result of the questioning of witnesses in the way I have described, the Ledgers remained part of the repository of documents that the Inquiry held, but had not published. Unless and until released into the public domain by the Inquiry by publication on its website, those documents were protected from publication – for the duration of the Inquiry – by the CP Undertaking.

The Final Restriction Order

Whilst there are some oddities about the Final Restriction Order, in my judgment the purpose and effect of this Order is clear. During the currency of the Inquiry, Sir Brian Leveson published witness statements, documents and other evidence on the Inquiry website. Such documents were not the subject of any restriction order under s.19 and, once published, were released from the CP Undertaking.

At the end of the Inquiry, amongst other things, Sir Brian Leveson had to decide what to do with the documents held by the Inquiry which had not previously been published. Consistent with the presumption that documents received by the Inquiry would be made public (see [30] and [266] above), it appears that the vast majority of them, in respect of which no credible claim by the owner of the document was or could be made that publication of the documents would give rise to any risk of harm (within the terms of s.19(4)(b)), were published on the Inquiry website at the end of Part 1 of the Inquiry.

Some documents were, however withheld by the Inquiry, and not published, Sir Brian having been satisfied that it was appropriate to withhold the relevant document (or any redacted material) on the grounds identified in paragraph 3 of the Final Restriction Order. The Final Restriction Order – which binds “all persons” – prohibited the disclosure or publication of any of the redacted material that had been published by the Inquiry and the withheld material.

The imposition of the Final Restriction Order, in my judgment, neatly and effectively transferred the restrictions that had, until that point, been imposed by the CP Undertaking upon any withheld material from Part 1 of the Inquiry. The CP Undertaking would have come to an end at the conclusion of the Inquiry.

The Claimants submitted that this analysis is flawed. They argue, first, that Sir Brian made no order (or ruling) that the Ledgers should be withheld following representations made by Associated (see [56]-[59] above), and that the Ledgers were not included in the Schedule to the Final Restriction Order. Both of those submissions are correct – as far as they go. Sir Brian did not make an express ruling upholding Associated’s objections to publication of the Ledgers (indeed, the Inquiry did not respond to the submissions sent on Associated’s behalf on 18 September 2012) and the Ledgers were not identified in the Schedule to the Final Restriction Order. Nevertheless, I do not accept that these matters have the consequence urged by the Claimants. I also reject the Claimants’ submission that the Final Restriction Order is unclear or vague in its ambit.

The starting point is that the Inquiry did not publish or release the Ledgers; on the contrary, they were withheld by the Inquiry. Mr Sherborne submits that there is a ‘missing’ (or ‘phantom’) restriction order, and that this absence is fatal to Associated’s contention that there is any continuing restriction on use of the Ledgers by the Claimants. I reject that submission. It is clear that Sir Brian must have accepted Associated’s submissions that the Ledgers should not be published by the Inquiry. Although it is not possible to identify precisely when that decision was taken, it clearly was made because the Inquiry ultimately decided (in a change from its starting position, as indicated in the email of 17 August 2012) to withhold publication of the Ledgers from the documents that were released to the public at the end of the Inquiry. I also reject the Claimants’ contention that “withheld material” in the Final Restriction Order embraces only material in respect of which the Inquiry has made a previous restriction order. In my judgment, the Final Restriction Order bears its ordinary meaning of material that the Inquiry has, in fact, withheld from the public. There is nothing unclear about the terms of the restriction that were imposed.

I accept that it is an oddity that the Ledgers were not expressly included in the Schedule to the Final Restriction Order, which listed, by URN, the documents that could not be disclosed or published. The wording in the Schedule indicating that, also withheld, were “various documents and other material without reference numbers” would appear not to include the Ledgers which did have URNs. However, in my judgment, these points do not lead to a different conclusion. The Ledgers plainly fall within the “withheld material” in Paragraph (1) of the Final Restriction Order; they had been withheld from publication by the Inquiry. As Schedule 1 was expressly stated to be inclusive of withheld material, it did not exhaustively define it. That being the case, it does not matter whether the wording of the Schedule embraces the Ledgers or not. Whilst inclusion of the Ledgers in the Schedule, would have put beyond doubt that they were subject to the Final Restriction Order, the converse is not the case. The absence of the Ledgers from the Schedule does not mean that they are excluded from the Final Restriction Order or that the terms of the order are unclear.

For the reasons I have given, I conclude that the Ledgers are subject to the Final Restriction Order imposed by the Inquiry.

What is the consequence for this litigation?

Unless varied or revoked, the Final Restriction Order continues in force “indefinitely”: s.20(5). It binds all persons. As the Inquiry has now ended, the power to vary or revoke lies with “the Minister”, in this instance, the Secretary of State for Media, Culture and Sport and/or the Home Secretary (see [25] and [269] above). As made clear in the order itself, any person affected by its terms could seek its variation or revocation under s.20(7). The Final Restriction Order has not (yet) been varied or revoked to enable publication or use of the Ledgers, and there is no evidence that anyone has sought such a variation or revocation. As noted above, unlike the position under CPR 31.22, the Court lacks jurisdiction to vary or discharge the Final Restriction Order, and it cannot give retrospective permission for the use of the relevant documents.

That being the case, in my judgment, the starting point is that the Court must recognise, and give effect to, the significant public interest in ensuring that a restriction order made under the Inquiries Act 2005 is observed and not breached.

Where statutory powers to compel the production of documents from an individual have been used for a public inquiry, there is a corresponding expectation that any confidentiality in those documents will be appropriately respected. Ultimately, the public inquiry may decide that any confidentiality in documents that are provided is outweighed by a countervailing interest, but until such determination is made the party disclosing the documents and the inquiry share a common interest in appropriately protecting any confidentiality. Whilst the disclosing party has obvious private interests in maintaining confidentiality, the inquiry must also consider the broader public interest in the proper administration of justice, particularly the candour principle. It is not in the public interest for an individual in possession of documents that are potentially relevant to, and could assist with, a public inquiry to be discouraged from providing them in response to a s.21 Notice by a fear that the inquiry will not properly take into account any confidentiality interests. The analogy with the restrictions on collateral use of documents disclosed in legal proceedings is a powerful one because the underlying policy considerations are very similar.

In consequence, in my judgment, where (and to the extent that) there has been use of material in breach of a restriction order imposed under s.19 Inquiries Act 2005 then, quite apart from any other sanction that might be available under the Act for any proved breach, such use is an abuse of process and would justify the striking out of the relevant parts of a statement of case. Looked at another way, I am satisfied that it would bring the administration of justice into disrepute, in the manner explained in Hunter -v- Chief Constable of West Midlands , if the Court were to permit the use, in civil litigation, of material in breach of a restriction order that remains in force.

Does the publication by the Online Publisher of information from the Ledgers make any difference to the outcome? In my judgment it does not.

First, the Online Publisher has not published all the Ledgers (or the information contained in them). It is not the case, therefore, that the sections of the Particulars of Claim could have been pleaded relying on information available that was readily available in the public domain. Second, whether (and to the extent that) material has entered the public domain contrary to a restriction order, whilst relevant to the Restriction Order Application, cannot be determinative of it (see further [304]-[305] below). Finally, and importantly in any event, the Claimants’ evidence is clear. The Ledgers were provided to the Claimants’ solicitors by the Online Publisher. It was these documents that were then used to plead various sections in the Particulars of Claim. Without revocation or variation of the Final Restriction Order, such use is impermissible.

The Claimants submitted that the Restriction Order Application is “artificial in the extreme” because Associated has not suggested that there are independent grounds upon which the Court would strike out the sections of the Particulars of Claim that have relied upon information from the Ledgers. The Ledgers would, the Claimants submit, fall within Associated’s disclosure obligations during the litigation. The Claimants argue all that is achieved by upholding the Restriction Order Application is the postponement of the point at which the Claimants would be able to rely upon the Ledgers in the proceedings.

It may be that the Claimants’ claims could have been formulated without use of the Ledgers (and they may yet be reformulated to do so). It may be that Associated will, at some point in the litigation, be required to disclose the Ledgers to the Claimants as part of its obligations under Part 31. There is some force in those submissions, and people learning of the Court’s decision may think that the Court is elevating form over substance. However, in my judgment the Restriction Order Application raises an important issue of principle. Parliament has – in the Inquiries Act 2005 – set out the law that governs the conduct of public inquiries. That includes granting to the chairman of an inquiry important powers to compel the production to the inquiry of documents and evidence, and a concomitant power to place restrictions on the use of such material both during and after the inquiry.

I have concluded that restrictions were imposed on the Ledgers by the Inquiry and that those restrictions remain in force. The policy considerations, well-developed in other areas of the law prohibiting collateral use of documents whose production has also been compelled, apply equally to restriction orders made under the Inquiries Act 2005. Fundamentally, this engages the rule of law. Restriction orders made in a public inquiry must be obeyed. If they appear to have been breached, potential remedies are provided under the Inquiries Act 2005. But beyond that, and in my judgment, the Court will, for its part, not permit the use in litigation of documents which have been provided or obtained in breach of a restriction order without the relevant restriction order being varied or revoked pursuant to s.20. By so doing, the Court is upholding and promoting the rule of law. Ignoring (or treating without consequence) the breach of a restriction order would involve the Court in undermining the rule of law. That being so, the Court’s duty is clear.

It is not the case, here, that the Claimants could have pleaded the same facts in their Particulars of Claim from material available in the public domain. But even if they could have done, if that material had been placed in the public domain in breach of a restriction order, the availability in the public domain would not have been determinative. Often, when confronted with such a situation, the Court can be met with criticism that it is adopting a Canute-like approach. Nevertheless, the need to uphold the rule of law is not diminished (or extinguished) by breaches of it. Arguably it is at that point that the Court’s duty is the clearest. If authority were required for that proposition, it can be found in the opening paragraphs of the Supreme Court’s decision in PJS -v- News Group Newspapers Ltd [2016] AC 1081 and Lord Mance’s observation (on behalf of the majority) [3]:

That extreme position has not been reached in this case. The Court is not engaging on a futile exercise. Notwithstanding the publications of the Online Publisher, there remains something worthwhile to be protected by ensuring that there is compliance with the Final Restriction Order.

Alleged breach of the CP Undertaking

In light of the decision I have reached, it is not necessary formally to resolve Associated’s alternative submission that use of the Ledgers was also a breach of the CP Undertaking by Mr Sherborne, Sir Simon Hughes and/or Mr Thomson (see [251] above).

Many reasons were advanced by the Claimants as to why there was no breach of the CP Undertaking. I do not need to consider these as, in my judgment, the CP Undertaking came to an end once the Inquiry had ended. As I have noted (see [290] above), the CP Undertaking was practically replaced by the Final Restriction Order at the end of Part 1 of the Inquiry. There was some interesting discussion, at the hearing, as to whether the CP Undertaking could have survived the end of the Inquiry and, if it did, who could now seek to enforce it. Those potential difficulties perhaps demonstrate why the Final Restriction Order was made in the terms it was. In light of my conclusions, I do not need to resolve these issues, but given the potential seriousness of the allegation, it is important that I should state clearly that, on the evidence I have seen, I do not consider that Mr Sherborne, Sir Simon or Mr Thomson have breached the CP Undertaking.

The order the court will make

Although the precise terms of the order that should be made to reflect the Court’s decision will need to be resolved after this judgment is handed down, following the submissions of the parties, the principle is clear. Without obtaining the variation or revocation of the Final Restriction Order, the Claimants will not be permitted to advance those parts of the Particulars of Claim that have relied upon information drawn from the Ledgers provided to them by the Online Publisher.

Several options would appear to be available. The Claimants could seek the variation (or revocation) of the Final Restriction Order by the relevant Minister(s) (see [295] above), in which case the Court may well be persuaded to grant a short stay of the proceedings to allow them to do so. Alternatively, the Claimants could, by amendment, remove those parts of the Particulars of Claim that have relied upon information drawn from the Ledgers. Whether, and the extent to which, any parts that the Claimants remove from the Particulars of Claim could be reinserted at a later point, would depend upon the course the litigation takes and particularly the disclosure phase. A further option would be for Associated, now, to give voluntary disclosure and inspection of the Ledgers to the Claimants, but that is not something that the Court can order on this application. Whichever option is adopted, the position regarding use of the Ledgers must be regularised.

The discrete further points

As I have noted (see [254] above), there are three further discrete points that Associated raised in relation to passages of the Particulars of Claim. I shall deal with this shortly.

Documents provided by Mr Whittamore to the Claimants

There is an issue as to whether Mr Whittamore has independently provided the Claimants with certain invoices, from which the Claimants have identified journalists at Associated who used his services. In his witness statement, Mr Whittamore stated that he had retained a copy of his typed contact list which he had created and used after 2003 (after an earlier contact list was seized). This contained a list of journalists at various newspapers, including Associated titles, who had “used his services regularly after 2003”.

Associated accepts that if the Claimants are able (independently from the Ledgers) to source payments to Mr Whittamore from information that he has provided to them, then there is no objection to inclusion of that information in the Particulars of Claim. Nevertheless, Associated complain that Mr Galbraith’s evidence is unclear on this point. In his witness statement, Mr Galbraith has stated that “references in the Particulars of Claim to [Associated’s] use or, or payments to… Steve Whittamore… are underpinned by material provided by Mr Whittamore himself…” and later in his statement, that Mr Whittamore “had provided the underpinning of the references [in the Particulars of Claim] to [Associated’s] instruction of him”. Mr Galbraith’s third witness statement takes matters no further forward.

I cannot, at this stage and on the available evidence, finally resolve this point. The principle, however, is clear. The Claimants cannot rely on information from the Ledgers if they have come from the Inquiry. Mr Whittamore has independently provided documents to the Claimants. If information pleaded in the Particulars of Claim has been sourced from the documents provided by Mr Whittamore, then that is unobjectionable, as Associated accepts. The Claimants’ advisors will know the answer to this question, and ultimately the position will become clear on disclosure. If there is any further dispute, then the issue will have to be resolved later in the proceedings.

References to ELI/TDI

Associated makes a similar point regarding identification, in the Particulars of Claim, of journalists at Associated who used the agency ELI/TDI. In his witness statement, Mr Galbraith stated, compendiously, that information in the Particulars of Claim, had come from “material and information… provided to the Claimants’ … solicitors by [the Online Publisher], by Mr Whittamore himself… or by [another named individual QZ]”. That leaves unclear the extent to which information relating to Associated’s use of ELI/TDI that has been pleaded in the Particulars of Claim came from the Ledgers. Mr Galbraith’s third witness statement is again silent on this point.

Again, I cannot finally resolve this point on the evidence. The reasons I have set out in [313] apply equally to this point.

The Associated journalist alleged to have been interviewed by the police

The name of an Associated journalist who, it was alleged, was interviewed by the police, was contained in a witness statement provided by a police officer to the Inquiry. The name was redacted from the publicly available material from the Inquiry. Associated have questioned whether the unredacted statement was the source of the information that has been used to plead a section of the Particulars of Claim.

In his witness statement, Mr Galbraith identified the source of the information that was used in the Particulars of Claim. Associated challenged that evidence. In his third witness statement, Mr Galbraith has provided more information. He states that the identity of the Associated Journalist was established by QZ.

Associated apparently remains unsatisfied with this explanation. Nevertheless, Mr Galbraith has now clearly stated in his evidence that the name of the Associated journalist included in the Particulars of Claim did not come from material withheld by the Inquiry, but from QZ. As such, there is no sustainable objection to its inclusion in the Particulars of Claim.

I have explained and introduced the Reporting Restriction Application earlier in this judgment (see [15]-[16] above).

The basis of the application can be summarised as follows.

The Reporting Restriction Application was opposed, in part, by the Online Publisher. It complained that it had not been given notice of the Reporting Restriction Application, but nevertheless had been able to instruct Counsel for the hearing who provided a note of its submissions. The Claimants adopted a neutral stance on the Reporting Restriction Application.

Legal principles

Ordinarily, civil proceedings in this jurisdiction are conducted in open court, enabling members of the public and media to attend and observe the proceedings: CPR 39.2(1). Subject only to any reporting restrictions that are imposed (or apply), a person who attends the hearing is entitled to report what has taken place during the proceedings. This right is of greatest practical importance and significance for those journalists (and others) who attend to report on the proceedings. This is the principle of open justice. It is vital to the proper functioning of the Court in a democratic society.

Restrictions on (or derogations from) open justice come in different forms. The most restrictive type of order is a direction that the Court’s proceedings will be held in private, the effect of which is to exclude from the hearing everyone except the parties, including members of the public and media. A court will only sit in private where it is been demonstrated, convincingly, that it is necessary to do so: CPR 39.2(3). Even then, the Court will strive to provide as much information about the proceedings and why the Court has found it necessary to sit in private: JIH -v- News Group Newspapers Ltd [2011] 1 WLR 1645 [21(9)] and [35].

Orders withholding, from the public, the identity of an individual in connection with the proceedings (“anonymity orders”) (and any corresponding reporting restrictions prohibiting the identification of the individual) will only be granted where it is strictly necessary, and then only to that extent: CPR 39.2(4).

Often, the legitimate aim sought to be achieved by the relevant restriction can be imposed by measures short of the Court sitting in private. In this category fall anonymity orders, reporting restriction orders, and orders restricting access to certain documents from the Court file that would otherwise be available to non-parties.

Nevertheless, any derogations from the principle of open justice:

A temporary order imposing anonymity and reporting restrictions may be necessary in the interests of fairness and to protect the administration of justice: Clifford -v- Millicom Services UK Ltd [2023] ICR 663 [40] per Warby LJ. The stage the proceedings have reached is also likely to be a factor in the Court’s determination of whether such an order is necessary: CDE -v- NOP [2022] 4 WLR 6 [42] per Males LJ: “… there is a spectrum, with the trial at one end and an early procedural hearing at which there is to be no adjudication on the merits at another”; and HRH The Duchess of Sussex -v- Associated Newspapers Ltd [2020] 1 WLR 4762per Warby J (identity of potential witnesses withheld at pre-trial stage). It is not usually in the interests of justice or fairness, or for the public benefit, that only one side of a story is ventilated, or to allow reporting (under privilege) of allegations of serious wrongdoing, where the subject of the allegations has not yet been given an opportunity to answer them: Bray -v- Deutsche Bank AG [2009] EMLR 12 [7] per Tugendhat J; Qadir -v- Associated Newspapers Ltd [2013] EMLR 15 [100]-[101] per Tugendhat J.

Submissions

Associated

Ms Evans KC, for Associated, submitted that derogations from open justice were necessary:

The Online Publisher

The Online Publisher was neutral about sub-paragraph (1) in the paragraph above, but it opposed the extensive anonymity order sought under sub-paragraph (2). The Online Publisher provided a witness statement, dated 26 March 2023, from one of its journalists. The evidence consisted largely of the extent to which the Online Publisher had published articles concerning “unlawful practices” at certain national newspapers, including Associated. Specifically, the Online Publisher identified occasions where it had named journalists and private investigators who it was alleged had been involved in Unlawful Information Gathering.

Decision

In the short judgment I gave, when I made the order granting anonymity and imposing reporting restrictions, I explained why I was satisfied that it was necessary to do so.

Largely I accepted Associated’s submissions. It was necessary to impose restrictions on access to, and reporting of, those parts of the Particulars of Claim that were the subject of the Restriction Order Application. If I had not done so, then reporting of these proceedings would likely have destroyed that which Associated was trying to protect by its application, before the Court had adjudicated upon it.

It was necessary to permit the names of the Anonymised Journalists to be withheld, and for reporting restrictions to be imposed, because I was satisfied that it would be unfair, and not in the interests of administration of justice, for them to be identified, at this early stage, before there has been an opportunity for them to respond to the allegations made against them. It is very unusual for the Court to have a 4-day hearing on matters concerning the Particulars of Claim in an action before even an Acknowledgement of Service has been filed.

As I indicated at the hearing, the restrictions imposed by the Order of 27 March 2023 will be reconsidered at the hearing that will be fixed after this judgment has been handed down. Whilst some of these restrictions are likely to remain in place, in view of the decisions I have made, the restrictions upon identification of the Anonymised Journalists are likely to be lifted once a Defence has been filed. At that point, fair and accurate reports of allegations made in the Particulars of Claim, if they are to be published for the public benefit, would have to include any response to those allegations pleaded in the Defence.

For the reasons set out in this judgment: (1) the Limitation Application is dismissed; and (2) the Restriction Order Application succeeds.

This judgment will be handed down remotely. A hearing has been fixed for 21 November 2023, at which the Court will hear the parties’ submissions on the orders that should be made consequent on the judgment. Until then, the Reporting Restriction Order will remain in force.