Case Law: Gray and Coogan v News Group and Mulcaire, phone hacking disclosure order – Henry Fox

27 02 2011

Mr Justice Vos

On Friday 25 February 2011 Mr Justice Vos handed down judgment in relation to various applications made in the “phone hacking” claims against the News of the World and Glenn Mulcaire by Gray and Steve Coogan.  This decision, in the case of Gray v News Group Newspapers ([2011] EWHC 349 (Ch)) is perhaps the most important so far of the various “phone hacking” judgments.

The claimants had served detailed requests for further information on Mr Mulcaire. He had, in turn, relied on the privilege against self incrimination (“PSI”).   He had made a similar claim in respect of similar requests in the Nicola Phillips action but Mr Justice Mann held at the end of last year that her proceedings were  “for the infringement of rights pertaining to intellectual property” within the meaning of section 72(2)(a) of the Senior Courts Act1981  and therefore the privilge was not applicable (Phillips v News Group [2010] EWHC 2952 (Ch)).  Mr Justice Mann gave permission to appeal and the Court of Appeal is likely to hear the appeal in May.

The Judgment

In the Coogan & Gray case, the requests covered 4 separate areas:

i)   Whether Mr Mulcaire’s interception of the Royal victims and other admitted victims was at the instruction of NGN and  whether information from these interceptions was passed to NGN.

ii)  Whether, on Mr Mulcaire’s case, there were victims other than those named in the indictment in the criminal proceedings, and if not, whether the non-Royal victims named in the indictment were not a representative cross-section of that larger pool of victims.

iii)  A series of requests concerning the method which Mr Mulcaire used to obtain Mr Gray’s numbers and passwords, who provided that information, and when it was obtained?

iv)  Requests  seeking the identity of 16 redacted names on Mr Mulcaire’s target list.

The Category i) requests covered issues for which Mr Mulcaire had already been convicted and he therefore could not invoke PSI.  Mr Mulcaire asserted that these request were not relevant to the claim, even though the claimants had pleaded that there had been a widespread conspiracy of interception cover not just those victims for which Messrs Mulcaire and Goodman were convicted. The Judge firmly disagreed and held:

“In my judgment, these requests are relevant to the case brought by the Claimants. It is alleged against the Defendants that they were intercepting telephone voicemail messages on an industrial scale. It will be important to the Claimants’ case to establish the pattern of the Defendants’ interception activities. It must be remembered that it is alleged in each case that Mr Mulcaire conspired with NGN to intercept the Claimants’ messages. The general practice that Mr Mulcaire adopted in taking instructions from and reporting to NGN journalists in admitted cases will, in my judgment, be relevant to the existence of the conspiracy alleged. We already know that Mr Mulcaire had a target list comprising some 18 names, of which Mr Gray was one. It is possible, if not likely, that the other names may include some of those that are the subject of these requests. If they are, the possibility of establishing a conspiracy to intercept these Claimants’ messages and those of the other targets will be advanced” [112]

He held that the outcome of the application did not, in fact, depend on whether the answers were admissible as similar fact evidence – because they were relevant to the specific claims by the claimants.  However, he went on to hold that, in any event,  the similar fact evidence requested is obviously relevant to the claims.

In respect of the remaining requests PSI was invoked and the issue was whether the exception under section 72(2)(a) of the Senior Courts Act applied and hence whether the information which was the subject matter of the action fell within the definition of commercial information.

As  consequence of the PSI issue being raised the claimants sought to amend their particulars of claim to assert that the information in voicemails was commercial information. This in turn was opposed by the defendants who contended that there was no evidence that voicemail messages had been intercepted and that the amendment should not be permitted.  As a result, Mr Justice Vos had to consider the merits of the claims.

Section 72 disapplies PSI in proceedings “proceedings for infringement of rights pertaining to any intellectual property”.   By section 72(5) the definition of intellectual property”  includes “technical or commercial information”.   Mr Jeremy Reed, counsel for the claimants in both actions, contended that the words “technical or commercial information” in the definition of “intellectual property” should be understood as if it read “protectable technical or commercial information”relying upon the House of Lords decision in Douglas v. Hello! Ltd ([2008] 1 AC 1), and on the judgment of Lord Neuberger MR in  Imerman v Tchenguiz  ([2010] EWCA Civ 908). Ms Alexandra Marzec, counsel for Mr Mulcaire, supported by Mr Anthony Hudson, for NGN, argued that “commercial information” in section 72(5) had quite a different meaning. The definition should, she argued, be construed narrowly.

The judge rejected the defendant’s submissions and held that  “technical or commercial information” with which section 72(5) is “any such information that can be protected as such by action.”  He went to find that on the facts the actions did concern commercial information and therefore declared that Mr Mulcaire is not excused by the PSI from answering any question put to him in these proceedings or from complying with any orders made in the proceedings under section 72(1).He therefore struck out parts in Mr Mulcaire’s defence that seek expressly to rely upon the PSI should be struck out.

Since the Defendants objected to the amendment the judge had to consider the merits of the amendment and the evidence so far available including the documents obtained from the police.

(a) Gray Documents from the Police; Mulcaires Notes and Phone records:   The judge was shown 8 pages  taken from Mr Mulcaire’s manuscript notebooks which had been heavily redacted , recording Mr Gray’s mobile phone number, direct dial message retrieval number, pin number and password. On one page, Mr Gray is shown as target number 6 on a list of 18 (otherwise redacted) targets. A number of pages have “Greg” apparently written in the top left corner of the page – alleged  to refer to Mr Greg Miskiw.  Another page comprises a list of 6 redacted telephone numbers, suggested, to be numbers picked up from Mr Gray’s voice mail box.

On 17 January 2011, the Metropolitan Police disclosed further documentation to Mr Gray, including some of Mr Mulcaire’s billing data in respect of calls from a landline number ending in the digits “3765” for the period from 24th January 2006 to 17th February 2006, and in respect of calls from a landline number ending in the digits “3328” from 1 December 2005 to 15 June 2006. These records appear to evidence 12 calls made from Mr Mulcaire’s lines to Mr Gray’s direct dial voicemail between 7 February 2006 and 20 June 2006. The duration of these calls was: 1 at 2 seconds, 1 at 3 seconds, 1 at 5 seconds, 1 at 6 seconds, 2 at 7 seconds, 3 at 8 seconds, 1 at 10 seconds, and 2 at 11 seconds.

(b) Documents From NGN: On 12th October 2010, NGN filed its list of documents in Mr Gray’s case, disclosing only 20 categories of documents in its control, not including any journalists’ notebooks, and not listing any documents that were no longer in its control. Remarkably, the list stated that NGN had not searched for documents contained on or created by NGN’s computer equipment. On 27 October 2010, Mr Gray’s solicitors wrote to NGN’s solicitors complaining about the inadequacy of NGN’s list of documents and seeking 20 further categories of documents.

The defendants opposed the application for permission to amend  on three main grounds: first, they contend that there is no evidence at all that any of either Claimant’s telephone messages was intercepted, and secondly that, even if such evidence does exist, the Claimants have no real prospect of proving that the Defendants misused or threatened to misuse the information in the messages.

The Judge considered the five categories of evidence of interception in Mr Gray’s case as follows:

i)  The redacted documents disclosed by the Metropolitan Police

ii) The evidence in Mr Gray’s statement concerning strange activities on his mobile telephone voicemail system.

iii) The phone records disclosed by the Metropolitan Police.

iv) The negative inference relied upon arising from Mr Mulcaire’s taking the privilege.

v) The fact that Mr Mulcaire has admitted intercepting other people’s voicemail messages in the criminal proceedings.

The main point argued in Mr Gray’s case was that none of the 12 calls known to have actually been made from Mr Mulcaire’s landlines to Mr Gray’s voicemail box number was long enough to allow interception of Mr Gray’s voicemail messages. The defendants relied on evidence at the original criminal trial that it normally takes 9 seconds to access any real messages when a call is made to a voicemail direct dial number.

The judge rejected the defendants’ arguments on the merits of the amendments sought by the claimants.  His findings are of considerable importance in relation to all the phone hacking cases.  In relation to Mr Gray’s claim, he said the following:

“it seems to me that …  there is abundant evidence that Mr Gray’s voicemails were intercepted, and a strong inference that some misuse will have been made of the confidential information thereby obtained. The 12 calls that have already been proved may well not be the whole story. And at least 3 of them were long enough for some information to have been obtained …   Mr Mulcaire could have telephoned from any landline, not only his own, and the Police have still not disclosed all his landlines for the entirety of the relevant period. There is likely to be more information from the Metropolitan Police in both cases, now that a new impetus has been given to their investigation. A detective has already been in touch with Mr Gray offering access to more documentation. In addition, NGN’s disclosure is at the moment somewhat exiguous. I have no evidence as to whether there are justifiable reasons for that, but NGN has, as yet, disclosed none of its telephone records or electronic documents, which might be expected to show whether its journalists were making use of intercepted information emanating via Mr Mulcaire, from Mr Gray’s voicemails. Moreover, the documents from Mr Mulcaire’s own handwritten notes are more than enough to satisfy me that interception of Mr Gray’s voicemails was something that Mr Mulcaire was undertaking regularly. …  I asked Mr Hudson what possible other inferences could be drawn from the fact that Mr Mulcaire set up the procedures and obtained the necessary numbers to intercept Mr Gray’s messages, other than that he did so. I note also that the date on one of Mr Mulcaire’s handwritten notes is 22nd April 2005, which is not coincident with any of the telephone records that the Metropolitan Police have, thus far, disclosed. That indicates that the telephone records already disclosed may not be as complete as the Defendants would like to suggest” [102].

The judge went on to consider NGN’s arguments that there was nothing to connect it to the interception.  He rejected this is in decisive terms:

“since Mr Mulcaire was contracted to NGN, I disagree. Moreover, Mr Mulcaire’s own notes and the reference to “Greg” therein supports that case, even though it remains to be proved that “Greg” was Greg Miskiw, a NotW journalist. ..  Mr Mulcaire clearly intercepted Mr Gray’s voicemail. What information he obtained and on how many occasions will be a matter for trial.” [103]

The judge reached a similar finding in relation to Mr Coogan.  He noted that he had not yet had disclosure from the police and that his case was less well developed but nevertheless concluded that

“just as in Mr Gray’s case, it is a fair inference from the fact that Mr Mulcaire had the wherewithal to intercept Mr Coogan’s telephone that he is likely to have done so. Why else would he have gone to the trouble of (presumably unlawfully) accessing the necessary numbers? I also place significant reliance in Mr Coogan’s case on Mr Coogan’s own evidence of the suspicious activities on his mobile telephone account, and the strange incidents in relation to lost voicemails and unusual calls. Again, it seems to me on the evidence before me that there is a properly arguable case that Mr Coogan’s confidential commercial information was intercepted by the Defendants” [104].

As a result, the judge allowed the claimants to amend their pleadings.

The judge then went on to consider the requests in relation to which Mr Mulcaire had invoked PSI.  He ordered Mr Mulcaire to respond to the requests ask about how he obtained Mr Gray’s mobile phone number, direct access voicemail number, unique PIN numbers, account number with Vodafone, and password, who provided that information, and when it was obtained on the grounds that they are relevant to the alleged conspiracy of which he is said to have been a part.  He also ordered Mr Mulcaire to identify who had instructed him to intercept the claimant’s  messages and the other 17 names on Mr Mulcaire’s target list, and required him to explain how the names were identified and who was involved in that process.

Comment

The decision is not only important for the action broughts by Mr Gray and Mr Coogan but it will also have significant impact on the other civil actions that are being pursued in terms of requests that can be made and disclosure that should be given.   The Judge accepted the inference, based on the material held by Mr Mulcaire, that voice mails had, indeed, been intercepted.


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