Case Law: Gulati v MGN Ltd, Mirror fails in phone hacking strike out application – James Heath

6 11 2013

GulatiMr Justice Mann, the managing judge in the Phone Hacking Litigation, has today dismissed applications for strike out and summary judgment in four phone hacking claims brought against Mirror Group Newspapers (Gulati and others v MGN [2013] EWHC 3392 (Ch)).

On 22 October 2012, Shobna Gulati, the Coronation Street actress, Sven Goran-Eriksson, the former England manager, Abbie Gibson, former nanny to Victoria and David Beckham, and Garry Flitcroft, the former Captain of Blackburn Rovers, brought claims against MGN Ltd (publishers of, amongst other titles, the Daily Mirror, the Sunday Mirror and the Sunday People newspapers).

The four claims are for misuse of private information and breach of confidence arising out of the alleged  interception of voicemail messages (commonly known as “phone hacking”).  Each of the four claims rely on inference from various “generic” facts which are said to evidence a pattern of phone hacking in the tabloid industry generally, and the Mirror Group in particular.

Instead of serving Defences to the four claims, MGN sought to strike out the generic facts pleaded in the four claims and sought to strike out the claims of Garry Flitcroft and Abbie Gibson in their entirety and/or summary judgment.

The hearing of the applications had been adjourned twice but finally took place on 25 and 26 October 2013.  Mr Justice Mann handed down judgment today.

Judgment

The Judge begins by providing  a very useful summary of the authorities on summary judgment applications [6].  In particular, he says that the authorities make it clear that these kinds of applications must not become mini trials.  He endorsed the view that the Court should hesitate in making a final decision in cases where “reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to  or alter the facts available to the trial judge and so affect the outcome of the case”.

He had no hesitation that the case were capable of falling into that category.

The alleged activities in this case were covert and, of their very nature, would be activities of which the victims would know little or nothing.  Better evidence of what happened would lie with the defendant.  There is nothing wrong with pleading a starting point, on an appropriate basis, and then expecting the case to become clearer after pleadings and disclosure” [9]

The Judge went on to consider applications to strike out specific parts of the claims.

He held that “generic” facts – for example, concerning knowledge in the industry of the ability and propensity to hack phones – are plainly capable of being relevant (although what weight will be attached to them is to be decided) [18].

The Judge went on to consider the applications specific to Mr Flitcroft and Ms Gibson.  In relation to Mr Flitcroft, he held that there was a real prospect of establishing that phone hacking play its part in the genesis of a story published about him in The People newspaper ([31] to [37]}.

In relation to Ms Gibson, he makes a similar finding.  Interestingly, in the Gibson case  the claimant alleged that the story itself mentions voicemail messages of which the newspaper is aware. In making its application, MGN sought to attack Ms Gibson’s case based upon a previous statement in open court that she had made, which they say suggested accepted that the source of the story was not phone hacking.  They did not, however, give any positive evidence of the source of the story (say, a witness statement from the journalists involved in the story) and did not even give a bare denial that the source was phonehacking.  The Judge found the lack of a denial significant and that the failure to give any positive evidence on this point could not be ignored ([38] to [54]} .

Comment

These four claims are the first phone hacking claims to be brought against a publisher other than News Group Newspapers to date.  On 3 October 2013. Mr Justice Mann granted a Norwich Pharmacal application by a group of 15 individuals with potential claims against MGN (including two of the claimants).

In response to the Judgment, Trinity Mirror plc (the parent company of MGN) issued the following statement:

“The Company has previously announced that its subsidiary company MGN Ltd had received Particulars of Claim in four civil claims alleging phone “hacking” and was challenging the basis of those claims. The Company notes that the application to strike out two of the claims has not been successful. A linked application to challenge the basis on which two other claims were made was also unsuccessful. MGN continues to contest the four claims vigorously.”

James Heath is the Senior Associate at Taylor Hampton Solicitors and has conduct of these four claims.


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6 11 2013
Now the Mirror faces celebs phone hacking trial as News International shown to have hacked England football manager for four years | David Hencke

[…] the phone hacking scandal at both News International and the Trinity Mirror group. The authoritative Inforrm blog carries a report from lawyer James Heath on a decision handed down today by Mr Justice Mann […]

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