Gray v News Group Newspapers Ltd & Anor

The court considered three linked applications arising from alleged unlawful interception of voicemail by a private investigator, Glenn Mulcaire, acting for the News of the World (News Group Newspapers Limited). Central legal issues were (i) whether section 72 of the Senior Courts Act 1981 abrogated Mulcaire's privilege against self-incrimination, (ii) whether the claimants could amend their particulars to plead that intercepted voicemails comprised or included "commercial information" within the meaning of section 72(5), and (iii) whether Mulcaire should be ordered to answer specific Part 18 requests for further information about interceptions of third parties.

The court adopted a purposive but strict construction of section 72, concluding that the words "technical or commercial information" should be read to cover technical or commercial information that is protectable by action (for example by breach of confidence or contract). The judge rejected a narrow ejusdem generis reading that would confine "commercial information" to types cognate with patents, copyright or trade marks, but held that only confidential commercial or technical information that can be protected by proceedings falls within section 72.

Applying that construction to the facts before the court, the judge found that the claimants' witness statements plausibly identified voicemail material of confidential commercial character (for Mr Gray: advance football information and agent negotiation material; for Mr Coogan: business and production negotiation material). Accordingly the court made interim declarations that Mulcaire could not rely on the privilege against self-incrimination under section 72(1), struck out parts of his defences which expressly relied on that privilege and permitted re-service, allowed the proposed amendments subject to a limited redrafting requirement, and ordered answers to numerous Part 18 requests (with a limited exception for request 12).

This judgment concerns two consolidated civil actions by Andrew Gray and Stephen Coogan against News Group Newspapers Limited and Glenn Mulcaire arising from allegations that Mulcaire intercepted and listened to the claimants' mobile voicemail messages and passed on information to the newspaper.

Procedural posture and relief sought:

• The proceedings are first instance Chancery Division hearings of interlocutory applications. The claimants sought (i) interim declarations that Mulcaire could not invoke the privilege against self-incrimination by reason of section 72 of the Senior Courts Act 1981, (ii) permission to amend their particulars of claim to allege interception of "commercial information", and (iii) orders requiring Mulcaire to answer detailed Part 18 requests for further information about interceptions of other persons.

Issues framed:

1. Construction and scope of "technical or commercial information" in section 72(5) and whether that language abrogates the privilege in these proceedings.
2. Whether, on the available evidence, the claimants have a real prospect of showing that their voicemails contained protectable commercial information and thus that amendment should be permitted.
3. Whether specific Part 18 requests for further information about Mulcaire's activities and targets are relevant and should be answered.

Facts and evidence: Both claimants gave witness statements describing the commercial nature of many voicemail messages they received in 2005–2006 (Gray: inside football transfer/managerial information and agent negotiation messages; Coogan: business, production and negotiation messages for Baby Cow). The Metropolitan Police disclosure included handwritten notes and some call records linking Mulcaire to calls to the claimants' voicemail direct numbers. Mulcaire had pleaded the privilege in his defences and admitted intercepting voicemails of certain named victims in criminal proceedings.

Reasoning:

• The court adopted a purposive construction of section 72, recognising Parliament's intent to extend protection beyond traditional statutory intellectual property to include "technical or commercial information" that is capable of protection by action. The judge concluded that the phrase is best read as covering "protectable" technical or commercial information (i.e. confidential commercial/technical information capable of being the subject of proceedings), rather than being limited to matters ejusdem generis with patents and copyrights.
• On the evidence filed, the court concluded there was a proper arguable case that relevant voicemail messages contained confidential commercial information that could be protected by action. The paucity of full disclosure was explained by the criminal investigations and the passage of time; nonetheless the combination of disclosed handwritten notes, some call records, admissions in the criminal proceedings and the claimants' witness statements furnished a real prospect of success and justified amendment.
• Requests for identification of who instructed Mulcaire in relation to certain admitted victims and to whom intercepted material was passed, along with questions about how target numbers and access information were obtained and the identities of other targets, were held relevant to the alleged conspiracy and to preparing the claimants' cases; the court ordered answers to those requests save for the broadly framed question 12 which sought a fishing expedition as to the full extent of Mulcaire's other victims.

Outcome: Interim declarations issued that Mulcaire is prevented from relying on the privilege under section 72(1); parts of his defences relying on the privilege were struck out with permission to re-serve; claimants were granted permission to amend their particulars subject to re-drafting to remove pleadings by reference to their witness statements; Mulcaire was ordered to answer specified Part 18 RFIs (with limited exceptions). The court reserved detailed form of order, consequential directions, permission to appeal and costs to be addressed by counsel.

The court made interim declarations that Mulcaire was not excused by the privilege against self-incrimination in answering questions or complying with orders in these proceedings by reason of section 72(1) of the Senior Courts Act 1981; the judge reasoned that section 72(5)'s reference to "technical or commercial information" covers technical or commercial information that is protectable by action (for example by breach of confidence). Parts of Mulcaire's defences relying on the privilege were struck out and he was given leave to re-serve defences without those parts. Permission to amend the particulars of claim was granted, subject to re-drafting to remove pleadings by direct reference to the witness statements, and Mulcaire was ordered to answer specified Part 18 requests for further information (with a limited exception for request 12). The orders were justified on the evidence as showing a real prospect that voicemails contained confidential commercial information and that the requested information was relevant to the alleged conspiracy and to preparation of trial.