Coogan v News Group Newspapers Ltd & Anor

The Court of Appeal held that section 72 of the Senior Courts Act 1981 cuts down the common law privilege against self-incrimination (privilege against self-incrimination or PSI) in civil proceedings of the kinds identified in section 72(2). The court interpreted the definition of "intellectual property" in section 72(5) to include confidential information of a commercial character and, by virtue of the phrase "or other intellectual property", to cover non-commercial (including personal) confidential information which is protectable in law. The court concluded that voice messages intercepted from the claimants’ mobile telephones were, on the pleaded facts, within section 72 and therefore the defendants could not rely on PSI to resist disclosure required by the civil claims for breach of confidence and misuse of private information.

The court also held that the phrase "in the course of the infringement" in the definition of "related offence" (section 72(5)(a)(i)) is not to be given an unduly narrow meaning and that acts such as instructing an interceptor or passing on intercepted material fall within the scope of related offences. Finally, the court rejected the contention that section 72 is incompatible with Article 6 ECHR, noting statutory safeguards (section 72(3)) and procedural protections in criminal proceedings.

Background and parties. These appeals arise from two claims by Stephen Coogan and Nicola Phillips that voicemail messages on their mobile telephones were unlawfully intercepted by Glenn Mulcaire and/or News Group Newspapers Ltd (NGN). The claimants pleaded causes of action in breach of confidence and misuse of private information and sought injunctions, information as to who instructed interceptions and to whom intercepted material was passed, and damages.

Procedural history. The cases came to the Court of Appeal on appeals by Mr Mulcaire from orders made by Mann J (Phillips) ([2010] EWHC 2952 (Ch)) and Vos J (Coogan) ([2011] EWHC 349 (Ch)) requiring disclosure despite the defendants invoking PSI. Both lower court judges concluded that section 72 Senior Courts Act 1981 applied and deprived the defendants of the right to rely on PSI; permission to appeal was granted.

Relief sought. The claimants sought injunctions to restrain interception and use of intercepted material, disclosure of the identity of those instructing the interceptions and of recipients of intercepted material, and damages.

Issues framed. The principal issues were:

• whether information obtained from intercepted voicemails amounted to "intellectual property" as defined in section 72(5) (in particular whether "technical or commercial information or other intellectual property" covers confidential commercial and/or personal information);
• the meaning and scope of "related offence" in section 72(5), especially whether disclosure as to who instructed the interceptions or who received intercepted material falls within a "related offence" under para (a)(i); and
• whether section 72, as applied, is compatible with Article 6 ECHR (right to a fair trial).

Court’s reasoning and conclusions. The Master of the Rolls (with whom the other members agreed) analysed (i) the purpose and context of section 72, (ii) authorities and commentary on confidential information and intellectual property, and (iii) the particular factual descriptions in the claimants’ pleadings and witness statements. The court concluded:

• "Technical or commercial information" means confidential information of a technical or commercial character; the drafting and context of section 72(5) and authorities led to the inclusion of confidential commercial information within "intellectual property".
• By reason of the sweep-up words "or other intellectual property" and the protection historically afforded to private confidential material, the definition also covers protectable non-commercial (personal) confidential information in appropriate cases.
• On the facts pleaded, a significant proportion of the claimants’ voicemails were commercial or confidential and so section 72 applied, depriving Mulcaire of PSI as to disclosure ordered by the High Court.
• The phrase "in the course of the infringement" should not be given an unduly narrow meaning; instructions to intercept and passing on or playing intercepted messages fall within related offences for the purposes of section 72(5)(a)(i).
• Section 72(3) and other safeguards, together with criminal-procedure safeguards and prosecutorial decision-making, meant that no incompatibility with Article 6 ECHR was established; any Article 6 concerns were speculative at this stage.

Ancillary points. The court upheld the strike-out of passages in a defence which relied on PSI and declined to impose additional safeguards over and above those in section 72(3).

Appeal dismissed. The Court of Appeal upheld Mann J and Vos J: section 72 Senior Courts Act 1981 applies to the pleaded interceptions; "technical or commercial information" includes confidential commercial information and, through "or other intellectual property", may include protectable personal confidential information; instructions to intercept and passing on intercepted material fall within the concept of a "related offence" for section 72(5)(a)(i); and section 72 is not incompatible with Article 6 ECHR on the facts before the court.

Appeals from the High Court of Justice, Chancery Division: Mann J ([2010] EWHC 2952 (Ch)) and Vos J ([2011] EWHC 349 (Ch)); permission to appeal granted by the High Court and heard in the Court of Appeal as A3/2010/2862 and A3/2011/0688, neutral citation [2012] EWCA Civ 48.