Case Law: Various Claimants v MGN, Judge orders Mirror Group to give phone hacking “generic disclosure”

11 11 2014

Mirror GroupOn 28 October 2014.  Mr Justice Mann, the judge managing the Mirror Group phone hacking litigation, handed down a judgment dealing with the disclosure being sought by the claimants from MGN (Various Claimants v MGN [2014] EWHC 3655 (Ch)). He ordered MGN to give “generic disclosure” in relation to phone hacking – that is documents going to the general practices of phone hacking at Mirror Group newspapers.

The claims have been brought by a number of individuals in respect of phone hacking and allied wrongs said to have been committed by newspapers.  Eight or nine cases are to be tried in February 2015 as test cases.

The pleaded cases fall into two parts.  First there is “claimant specific” information which is said to demonstrate that a particular claimant was phone hacking. Secondly, there is material relied on which is described as “generic”.  The Judge described this as follows:

“generalised information which has come into the public domain as to the existence of phone hacking in general terms. It has come into the public domain in a variety of ways.  There is a pleading of certain expressed statements by individuals, and in particular there is reliance upon the evidence given by a journalist, Dan Evans, as to practices at the Mirror Group when he was there in the early 2000s.  That is a very important source of information for the claimants. None of that generic information goes to any particular specific incident of hacking against any individual.  Nonetheless, it is relied on amongst other things as supporting the factual case that the individuals were hacked because until recently there was no admission by MGN that any such incidents had taken place” [8].

In late summer 2014, MGN settled four of the original eight test cases and “admitted liability” in relation to to the other four.  There was, as the Judge put it, “a degree of equivocation as to actually what an admission of liability meant” and, as a result, the judge ordered the service of amended defences by MGN, giving full details of the admissions made.

The Judge noted that the amended Defences which were served were not in conventional form but rather made general admissions of liability without pleading to specific paragraphs of the Particulars of Claim.  He comments that this is unsatisfactory, describing the Amended Defence as a “very carefully drafted document which has been couched in its precise terms, no doubt for tactical reasons” [21].

The Judge summarised the position which had now been arrived at as follows:

“What emerges from the new pleading is, therefore, that there is no longer a general denial of relevant phone hacking activities on the part of MGN. It is accepted that there was phone hacking as regards the individual claimants” [19].

MGN had given “claimant specific disclosure” (that is, disclosure directed to demonstrating or disproving the activities targeted at the individual claimants) but had not given any “generic disclosure” (that is, disclosure going to the general level an nature of phone hacking).

The claimants applied for an order for generic disclosure, contending that it was relevant for a number of reasons including:

  • To support an inference of phone hacking in individual cases
  • Because it went to the actual extent of phone hacking
  • It was relevant to damages

MGN argued that generic disclosure was no longer necessary in the light of its admissions and would be disproportionate.

The Judge ruled in favour of the claimants.  He pointed out that, in contrast to NGN’s position in the earlier managed phone hacking litigation, the admissions made by MGN were “limited and carefully crafted” and there were no real admissions as to the generic case.

In relation to the claimants’ submissions he said

“I accept that the generic case is relevant to the issue of the likely extent of phone hacking beyond the specific incidents of which specific complaint is made in the individual cases. I accept that the generic disclosure is capable of demonstrating that which has not yet been demonstrated or conceded, that is to say that there may have been more and potentially much more hacking of each claimant’s phones than the incidents they currently know about and are able to plead, and that is capable of going both to the existence of a cause of action and as to the damages recoverable in this case. A claimant who has been hacked on, say, five occasions is likely to have a smaller claim than a claimant who has been hacked on 105 occasions.  I accept that it is highly unlikely that it will be possible to demonstrate the precise number of occasions on which a claimant has been hacked, but it may be possible as a result of generic evidence to demonstrate that the claimant has been hacked on a very significant number of occasions other than those as specifically pleaded, and that that is capable of operating in the claimants’ favour in the manner to which I have referred” [39]

He also said that there was a “degree of equivocation” in MGN’s admissions in relation to specific allegations and that generic disclosure was relevant here as well.

As a result, the Judge concluded that generic disclosure should be made by MGN.  He held that the best way to do this, for the time being, was for MGN to give disclosure of documents which it had already supplied to the Metropolitan Police in connection with police investigations [45].

MGN were refused permission to appeal against this order.

There were reports of the hearing which resulted in this judgment in the Independent:


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