Gray v News Group Newspapers Ltd & Anor

Section 72 of the Senior Courts Act 1981 is a derogation from the privilege against self-incrimination and must be construed strictly and purposively. The expression “technical or commercial information” covers information which is confidential and capable of protection by an action, including an action for breach of confidence, contract or another duty. It is not confined to information which is itself traditionally classified as intellectual property, nor is it restricted by the ejusdem generis principle to the listed statutory rights. Where pleaded evidence gives a real prospect of establishing interception of such information, amendments identifying the commercial information may be permitted. Requests for information about other interceptions may be relevant to an alleged conspiracy and an operational pattern, but a request seeking the general extent of criminal activity is a fishing expedition.

Two claimants brought claims against News Group Newspapers Ltd and Glenn Mulcaire alleging interception of mobile telephone voicemail messages, misuse of private and confidential information, breach of confidence and conspiracy.

The applications concerned three issues: whether Mr Mulcaire could rely on the privilege against self-incrimination; whether the claims should be amended to plead interception of confidential commercial information; and whether he should answer requests for further information concerning his activities and alleged co-operation with newspaper journalists.

The applications required the court to construe section 72 of the Senior Courts Act 1981, apply the test for amendments, and determine the relevance and proportionality of requests under CPR Part 18.

1. The court made interim declarations that section 72 of the Senior Courts Act 1981 prevented Mr Mulcaire from relying on the privilege against self-incrimination. The relevant claims included alleged infringement of rights pertaining to confidential commercial information.

2. Section 72 must be construed strictly and purposively. The words “technical or commercial information” have a real and significant meaning. They cover technical or commercial information which is confidential and capable of protection by action, including breach of confidence, breach of contract or breach of another duty. The information need not itself be a species of traditional intellectual property.

3. The ejusdem generis principle did not restrict “technical or commercial information” to information of the same type as patents, copyrights or trade marks. The relevant information was not confined to information having a creative element or a conventional proprietary character.

4. The evidence concerning the claimants’ professional and business voicemail messages gave a properly arguable case that confidential commercial information had been intercepted. The proposed amendments therefore satisfied the real-prospect test applicable under CPR Parts 17 and 24. Permission to amend was granted, subject to replacing references to witness statements with proper pleaded particulars.

5. Requests concerning instructions for interceptions of admitted victims, the passing of intercepted information, the obtaining of Mr Gray’s telephone details, and the identification of other targets were relevant to the alleged conspiracy and to the pattern of interception. They were ordered to be answered. The request seeking the general extent of Mr Mulcaire’s other criminal activities was a fishing expedition and was refused.

6. The court struck out the parts of Mr Mulcaire’s defences which expressly relied on the privilege and permitted re-service of amended defences. Requests for further information were ordered to be answered, save for question 12 in each first request. Costs and the precise form of the orders were reserved.