Phone Hacking: Disclosure Ruling in Max Clifford v News of the World

In a judgment given on 3 February 2010 by Mr Justice Vos,  Max Clifford obtained extensive disclosure orders from the High Court against the two defendants, private investigator Glenn Mulcaire and Newsgroup Newspapers in his action for breach of confidence in respect of telephone interception. Clifford also obtained an extensive order for disclosure against the Information Commissioner.

Background

Between June 2001 and March 2003 the Information Commissioner undertook an investigation, called “Operation Motorman”.  The investigation culminated in a report dated May 2006 entitled “What price privacy: the unlawful trade in confidential personal information”, and in a follow-up report dated December 2006.

In 2005, the private investigator Mr. Glenn Mulcaire was engaged by NGN (the owners of the News Of the World) to provide research and information services for which he was paid some £105,000.

In August 2006 the Metropolitan Police arrested Glenn Mulcaire and the News Of the World Royal Correspondent Clive Goodman in relation to suspected mobile phone message hacking.  The police obtained evidence that in the period from 16 February 2006 to 16 June 2006, some four months, that 66 telephone calls or messages were intercepted by Mulcaire.  These calls and messages that formed the subject matter of later criminal charges (counts 16-20) against Mr. Mulcaire.  Count 16 of the charges against Mr. Mulcaire concerned Mr. Clifford and related to seven intercepted telephone voicemails in respect of calls made between 7^th March 2006 and 3^rd May 2006.

Between November 2005 and August 2006, it was admitted by NGN that Mr. Goodman paid Mr. Mulcaire cash payments totalling some £12,300, although it contends that those payments were, first, not known to NGN; secondly, not made under the terms of any contract between NGN and Mulcaire; and thirdly, made in respect of information Mr Mulcaire supplied concerning the Royal Household and not information concerning Mr. Clifford.

On 29 November 2006, Mr. Mulcaire pleaded guilty to a number of criminal charges, including count one, concerning a conspiracy to intercept communications with three members of the Royal Household contrary to Section 1(1) Criminal Law Act 1977.  He also pleaded guilty to count 16 concerning intentional interception of voicemail communications of Mr. Clifford contrary to Section 1(1) Regulation of Investigatory Powers Act 2000.  Similar counts: 17, 18, 19 and 20 concerned interception of voicemails of Mr. Sky Andrew, Mr. Gordon Taylor, Mr. Simon Hughes MP, and Miss Elle Macpherson. Clive Goodman also pleaded guilty to a number of criminal charges in relation to messages concerning members of the Royal Family.

Mr. Mulcaire and Mr. Goodman were sentenced by Gross J. to six months and four months imprisonment respectively.  Mr. Mulcaire’s counsel informed Gross J. in the course of that hearing:

“that his [Mr Mulcaire’s] purpose was to obtain information concerning the private lives of the individuals concerned as well as other celebrities and pass it on to the News of the World.”

On that same day, Mr. Andrew Coulson resigned as the editor of the News of the World, and on 12 June 2007 NGN entered into a compromise agreement with Mr. Mulcaire and with companies connected with him.

Clifford Action

Max Clifford commenced legal proceedings on 24 July 2009. He made claims for misuse of private information and breach of confidence against Glenn Mulcaire and NGN for illegal telephone message interception. He claimed that NGN were actively involved in the activity and that NGN journalists had given instructions to Mulcaire. He also alleged that this illegal activity was endemic at the News of the World.  He relied on the Reports of the Information Commissioner and 13 detailed particulars of instances in which it is said that NGN  has been engaged in conduct of the kind complained of in different respects. These for example related inter alia to activities by two named and one unnamed journalists in relation to Mr. Gordon Taylor, to Mr. Goodman’s interception of the voicemail messages of what are described as “the Royal victims.  In addition, Clifford relied upon the fact that that the News of the World settled a claim by Mr. Taylor for voicemail interception in a particular sum.

Clifford also relied upon witness statements from Mr Clancy from the ICO and in particular the following;

“What the documents do show, as submitted to the Select Committee, is that there was evidence of a widespread and unlawful trade in confidential information commissioned by journalists of the News of the World and other titles from private detectives who may, or may not, have unlawfully intercepted mobile telephones in order to obtain such information.

The information that we have consented to disclose contains lists of the names of journalists who are employed by the News of the World and their requests for confidential information about, in most cases, high profile individuals.  Even though Mr. Clifford is not amongst those particular individuals, I understand that the particular private detective who has pleaded to the interception of Mr. Clifford’s mobile telephone was the second defendant, Glenn Mulcaire.  These records demonstrate the use of other private detectives being commissioned for other celebrities.”

Shortly before the hearing Mulcaire consented to judgment and injunctions were granted against him.

Disclosure

Relying in part upon the Norwich Pharmacal jurisdiction, on 3 February 2010 Vos J. ordered Mulcaire (who had just consented to judgment)  to disclose to Clifford three categories of information. First, the name of people who allegedly instructed Mr. Mulcaire to intercept Mr. Clifford’s voicemails; secondly, the names of people to whom Mr. Mulcaire passed intercepted voicemail information; and thirdly, the names of people to whom Mr. Mulcaire passed on the technical means of intercepting Mr. Clifford’s voicemails.

Despite strong opposition from NGN, Vos J also ordered the ICO to disclose detailed records namely;

(1) All ledgers and workbooks obtained during Operation Motorman that relate in any way to News Group Newspapers Ltd, including all such documents that relate to requests for information, the obtaining of such information, or the provision of such information;  (2) The spreadsheets that comprise or contain the aforesaid data (3) All lists of contacts, including names or telephone numbers of journalists at the News of the World obtained during Operation Motorman (4) All invoices and documents evidencing payments made/obtained during Operation Motorman in so far as they relate to News Group Newspapers Ltd (5) All correspondence to or from News Group Newspapers Ltd that relates to a request for payment for private or confidential information (6) Such documents as identify the provenance of the aforesaid documents.”

A trial date is due to be fixed shortly.

Coda

In evidence to the House of Commons Select Committee for Culture Media and Sport  in September 2009, the police indicated that they had only found evidence that a handful of persons had been subject to message interception. However in a recent response to a FOI request the police later admitted to the Guardian that from the material seized there appear to be 91 individuals in relation to whom PIN codes, needed for access to mobile phone voicemail, were recorded by Glenn Mulcaire.

It is not clear how many of the 91 persons were warned at the time of the Mulcaire investigation nor how whether they have now been warned.  See Guardian reports here and police letter to the Commons Select Committee here.