Coogan v News Group Newspapers Ltd & Anor

Section 72 of the Senior Courts Act 1981 removes privilege against self-incrimination in proceedings concerning rights in confidential commercial or personal information. Commercial information means confidential information commercial in character, rather than information which merely has value to someone. Personal confidential information falls within “other intellectual property”.

For intercepted voicemail, evidence that more than an insignificant amount of the messages ordinarily contained confidential information will normally suffice. The privilege is removed for information identifying those who instructed the interception and those to whom the information was passed. This statutory scheme, including the restriction on use of compelled material in criminal proceedings, is compatible with article 6.

Stephen Coogan and Nicola Phillips brought separate claims alleging that Glenn Mulcaire, acting for News Group Newspapers Ltd, had unlawfully intercepted their voicemail messages. Their claims included breach of confidence and misuse of private information. They sought disclosure identifying the messages intercepted, those who instructed the interception and those who received the resulting information.

Mulcaire claimed privilege against self-incrimination because the answers could expose him to prosecution under section 1(1) of the Regulation of Investigatory Powers Act 2000. Mann J, in Phillips’s claim, held that section 72 of the Senior Courts Act 1981 removed the privilege: [2010] EWHC 2952 (Ch). Vos J reached the same conclusion in Coogan’s claim: [2011] EWHC 349 (Ch).

The conjoined appeals concerned the meaning of “intellectual property” and “related offence” in section 72, the provision’s compatibility with article 6, the pleading of privilege and the need for additional safeguards.

1. The appeals were dismissed. Section 72 of the Senior Courts Act 1981 removed Mulcaire’s privilege against self-incrimination. The disclosure orders made by Mann J and Vos J were upheld.

2. “Commercial information” in section 72(5) means confidential information which is commercial in character. It does not encompass information merely because it has value to someone. Although confidential information is not strictly property under the prevailing view, it may properly be treated as an aspect of intellectual property for this statutory purpose. Lord Lowry’s reasoning in AT&T Istel Ltd v Tully was part of the ratio and required the information and the asserted rights to be of the intellectual-property genus. It did not exclude claims concerning confidential commercial information.

3. Personal confidential information also falls within “other intellectual property”. The law of confidence protects significant private information obtained by someone who knows that it was not intended for them, especially where it was deliberately acquired by unlawful means. Distinguishing personal from commercial confidence would produce arbitrary results and could make section 72 depend upon the manner in which a claim was pleaded.

4. Where voicemail has been intercepted, evidence that more than an insignificant amount of the messages ordinarily contained confidential information will normally justify invoking section 72. There is a strong presumption that at least some intercepted messages were confidential. The presence, or even numerical predominance, of non-confidential messages does not prevent disclosure as part of the overall exercise. Both claimants satisfied that standard.

5. The offence risk arising from identifying those who received the intercepted information was related to further infringements of confidence. Instructions to intercept were part and parcel of the interception and fell within offences committed “in the course of” the infringement. Section 72(5)(a)(ii) applies only where fraud or dishonesty is an ingredient of the offence. Section 72(2)(c) concerns apprehended infringements which have not yet occurred, rather than a prayer restraining repetition of an accomplished infringement.

6. Compulsion under section 72 was compatible with article 6. Any potential unfairness would arise only in a future criminal proceeding if the compelled information were used against Mulcaire. Section 72(3), prosecutorial duties and the criminal court’s power to secure a fair trial supplied safeguards. No specific reason justified imposing additional protections.

7. Privilege against self-incrimination cannot properly be pleaded in a defence as a substitute for admitting or denying allegations. Vos J therefore correctly struck out the relevant passages.

The Master of the Rolls delivered the judgment. Maurice Kay LJ and the Lord Chief Justice agreed.

1. Court of Appeal (Civil Division): The conjoined appeals were dismissed. The disclosure orders were upheld: [2012] EWCA Civ 48.

2. High Court, Chancery Division (Coogan claim): Vos J held that section 72 of the Senior Courts Act 1981 deprived Mulcaire of privilege against self-incrimination, substantially granted the requested disclosure relief and struck out reliance on the privilege in the defence: [2011] EWHC 349 (Ch).

3. High Court, Chancery Division (Phillips claim): Mann J held that Mulcaire could prima facie invoke the privilege but that section 72 removed it in the proceedings. He ordered disclosure: [2010] EWHC 2952 (Ch).