The Court of Appeal have listed the appeal which has been lodged by Glenn Mulcaire against the decision of Mr Justice Mann handed down on 17 November 2010 in Phillips v News Group Newspapers ([2010] EWHC 2952 (Ch)).

The private investigator Glenn Mulcaire was ordered by Mr Justice Mann to provide information identifying the “News of the World” journalists who instructed him to hack into voice mail messages.  The Judge ordered Mr Mulcaire to provide information relevant to the claim being brought by Nicola Phillips, a former employee of Max Clifford’s company, against the News of World arising out of alleged phone hacking.

Mr Mulcaire, who was sent to prison in January 2007 for intercepting the voicemail of eight people, had challenged the questions posed on behalf of Ms Phillips on the grounds that providing answers might incriminate him.

The order which was sought was that Mr Mulcaire should swear and serve an affidavit setting out the following information:

“a) The nature of the exercise he was instructed to perform which resulted in him intercepting the Claimant’s mobile phone messages and in the course of so doing preparing [the Mulcaire list].

b) The nature of the exercise he was instructed to perform which resulted in him intercepting phone messages from individuals connected with Mr Max Clifford.

c) The identity of the person or persons who instructed him to perform the exercise which resulted in him intercepting the Claimant’s mobile phone messages and in the course of doing so preparing the list of mobile phone numbers referred to above.

d) The identity of the person or persons who instructed him to investigate individuals connected with Mr Max Clifford.

e) In relation to [one number on the list, being that of Mr Edmonson]:

(i) Why was this identified as that of ‘Ian’?

(ii) Was it because the number was already known to him as that of one Ian Edmonson?

(iii) How did it come about that the number was already known to him as being that of Ian Edmonson?

(iv) Did Ian Edmonson request him to investigate the Claimant?

(v) Did Ian Edmonson request him to investigate individuals connected with Max Clifford?“

Mr Mulcaire sought to resist providing answers on the basis of the “privilege against self-incrimination”.  Mr Justice Mann agreed that the privilege was applicable but held that the evidence would be covered by section 72 of the Senior Courts Act, which removes the privilege in  inter alia, “proceedings for infringement of rights pertaining to any intellectual property or for passing off“.  As a result, the judge ordered that Mr Mulcaire should provide the information.

The Court of Apeal have provisionally listed the Appeal for the window of 9-May-11 to 31-Oct-11. A number of other actions are awaiting the outcome of the appeal.

The Gray Action

In a related but earlier decision in Gray v Newsgroup Newspapers and Glenn Mulcaire [2010] EWHC 2893, unreported,  Mr Justice Floyd has ordered on 5th October 2010 (by consent) that the Metropolitan Police disclose their evidence to the Claimant  in relation to the activities of Glenn Mulcaire. He also ordered third party disclosure of documents from the Information Commissioner.

After hearing detailed argument from Jeremey Reid, counsel for the Claimant, and from Micheal Silverleaf,  leading counsel for the News of the World, the Judge ordered that the Information Commissioner disclose the documents from the ICO  investigation that pertains to journalists from Newsgroup Newspapers, even though the ICO investigation predated the Mulcaire investigation by some years. The judge relied on two principal reasons:

“Firstly it seems to me that the documents are likely to support the case of the applicant. I have to say that I regard as somewhat artificial the suggestion that, because the documents do not touch directly on tapping into voicemails, in the sense of listening to the substance of the conversations, they are rendered irrelevant on that ground. I have the benefit of a witness statement made by Mr Clancy of the Information Commissioner’s Office, in which he (while accepting that the documents do not specifically show that phone hacking was taking place) says they do suggest that illegal activities are being commissioned, and makes it clear that, not only does the Information Commissioner support the application, but considers that the documents are likely to be helpful. I do not think that one can draw the precise line between phone tapping by means of identifying recipients of calls, and listening to the contents of the calls, which Mr Silverleaf seeks to identify….[10]

I should consider whether to exercise my discretion in this case to grant the order sought. There is no doubt that these documents exist, indeed they have been disclosed in previous civil actions, and I am told have been disclosed to NGN themselves. Whether or not that is right, it seems to me that what I am dealing with essentially is a package of documents, which will not require very much work in order to assemble, and which I am entitled to infer that some attention may already have been given. In those circumstances, there is at least that positive reason for believing that the burden on the case is not likely to be too great.”[12]