Phillips v Newsgroup Newspapers Ltd & Ors

Third-party disclosure may be ordered where the material is likely to support the applicant’s case or adversely affect another party’s case, and is necessary for the fair disposal of the claim or to save costs. Confidentiality and third-party privacy require carefully defined disclosure and redaction.

The privilege against self-incrimination applies where compelled answers create a real and appreciable risk of prosecution, including a risk that answers may be used indirectly in deciding whether to prosecute or in a later trial. Senior Courts Act 1981, section 72 removes that privilege in proceedings enforcing rights pertaining to intellectual property, including sufficiently commercial confidential information. A claimant may seek information needed to investigate an inferential claim where the questions are legitimate and material, rather than merely speculative fishing.

Nicola Phillips brought claims against Newsgroup Newspapers Limited and sought to join Glenn Mulcaire in proceedings concerning the alleged interception of voicemail messages from her mobile phones. She applied for disclosure from the Commissioner for the Metropolitan Police of documents seized during the investigation into phone hacking.

She also sought an affidavit from Mr Mulcaire addressing the nature of the interception exercise, who instructed it, and matters concerning a telephone number on a manuscript list. Mr Mulcaire resisted the request on the grounds of privilege against self-incrimination and argued that the application was premature and speculative. The issues were whether third-party disclosure should be ordered, whether the privilege applied, whether section 72 displaced it, and whether the questions amounted to impermissible fishing.

1. Third-party disclosure. The court ordered disclosure under Civil Procedure Rules 1998, rule 31.17, in the narrowed form agreed at the hearing. The documents were likely to support Ms Phillips’s case or adversely affect the cases of the defendants. They were necessary for the fair disposal of the claim because the police material was the best available evidence of the scope and consequences of the alleged hacking. Privacy interests of third parties were adequately protected by limiting the categories of documents and requiring redaction. The possibility that disclosure might weaken or end the claim did not prevent the order.
2. Privilege against self-incrimination. Applying Blunt v Park Lane Hotel Limited [1942] 2KB 253, R v Boyes [1861] 1B&S 311, and Rio Tinto Zinc v Westinghouse Electric Co. [1978] AC547, the relevant risk was a real and appreciable risk of prosecution, not a fanciful or remote possibility. Once such a risk appeared, considerable latitude had to be allowed to the person claiming the privilege. The possible use of compelled answers included indirect use in assessing whether to prosecute or in a later criminal trial, as explained in Saunders v United Kingdom [1996] case no. 43/1994/490/572 and Den Norske Bank v Antonatos [1999] QB271. The continuing police investigation and the DPP’s statement left an appreciable risk of further prosecution. Mr Mulcaire therefore had the privilege prima facie.
3. Section 72. The claim was, in part, one to enforce rights pertaining to intellectual property because confidential information connected with Ms Phillips’s commercial work was capable of having commercial value. The expression commercial information was broad and was not confined to conventional trade secrets or customer lists. Section 72 of the Senior Courts Act 1981 consequently removed the privilege for the relevant part of the claim. Section 72(3) protected Mr Mulcaire by preventing his answers from being used against him in a subsequent prosecution.
4. Fishing objection and order. The claim was inferential but not merely speculative. The questions were legitimate, relevant to determining the claim, and appropriate given that the alleged wrongdoing was covert. Mr Mulcaire was ordered to answer them within a timetable to be settled after judgment.

First-instance decision. No prior or appellate decision is stated in the judgment.