Phillips v Mulcaire

The Supreme Court considered the scope of section 72 of the Senior Courts Act 1981 and whether a witness could resist a disclosure order by claiming the privilege against self-incrimination. The court held that the definition of "intellectual property" in section 72(5) expressly includes "technical or commercial information", and that commercially confidential voicemail messages pleaded by the claimant fell within that definition so as to bring the proceedings within section 72(2)(a). The court also held that a criminal conspiracy to intercept communications is a continuing offence and that interceptions carried out pursuant to such a conspiracy occur "in the course of the infringement", so that conspiracy is a "related offence" within section 72(5)(a)(i). On those bases the appellant could not rely on the privilege and the disclosure order was lawfully made.

Background and facts:

• The claimant, Nicola Phillips, brought civil proceedings against News Group Newspapers Ltd and sought to join Glenn Mulcaire, alleging unlawful interception of voicemail messages and breach of confidence. The claimant sought remedies including an injunction, detailed disclosure, delivery up of documents, and an inquiry as to damages or an account of profits.
• Mr Mulcaire had previously pleaded guilty in 2006 to criminal offences including conspiracy to intercept communications and offences under the Regulation of Investigatory Powers Act 2000. A wider group of "phone-hacking" civil claims had been litigated and case-managed.

Procedural posture:

• On 17 November 2010 Mann J ordered disclosure against Mulcaire and joined him as a defendant ([2010] EWHC 2952 (Ch)). The Court of Appeal dismissed his appeal on 1 February 2012 ([2012] EWCA Civ 48, [2012] 2 WLR 848). Permission to appeal to the Supreme Court was granted.

Issues framed by the court:

1. Whether the words "proceedings for infringement of rights pertaining to ... intellectual property" in section 72(2)(a) of the Senior Courts Act 1981 extend to civil proceedings based on interception of voicemail messages alleged to contain "technical or commercial information".
2. Whether compliance with a disclosure order would tend to expose the witness to criminal proceedings for conspiracy, and if so whether such conspiracy would be a "related offence" within section 72(5) so as to preserve the privilege.

Reasoning and decision:

• The court analysed the statutory definition of "intellectual property" in section 72(5) and concluded that Parliament deliberately included "technical or commercial information" as falling within that definition, whether or not such information would otherwise be characterised as property. The statutory language and purpose (in light of the Rank decision and the need to protect remedies against commercial piracy) supported that construction.
• The court recognised that not all confidential information is "technical or commercial" and that private personal secrets will not always fall within the definition; but on the facts pleaded by Ms Phillips the voicemail messages contained commercially confidential material and therefore came within section 72.
• On "related offence", the court explained that conspiracy is a continuing offence: where conspirators agree to intercept communications and carry out intercepts pursuant to that agreement, each interception is "in the course of the infringement". Accordingly a charge of conspiracy to intercept would be a related offence within section 72(5)(a)(i). That conclusion distinguished authorities where conspiracy was not within the statutory formulation relied upon.

Relief sought and outcome:

• The appellant's claim to rely on privilege against self-incrimination was rejected and the disclosure order upheld; the Supreme Court dismissed the appellant's appeal.

The appeal is dismissed. The court held that section 72(2)(a) of the Senior Courts Act 1981 covers proceedings for infringement of rights in "technical or commercial information", and that voicemail messages pleaded as commercially confidential fall within that definition. Further, conspiracy to intercept is a continuing offence and interceptions carried out pursuant to the conspiracy occur "in the course of the infringement", so that conspiracy is a "related offence" under section 72(5)(a)(i). Consequently the privilege against self-incrimination did not entitle the appellant to refuse disclosure.

First-instance judgment: Mann J ([2010] EWHC 2952 (Ch)) ordering disclosure. The Court of Appeal dismissed the appellant's appeal on 1 February 2012 ([2012] EWCA Civ 48, [2012] 2 WLR 848). Permission to appeal to the Supreme Court was granted and the appeal was dismissed by the Supreme Court on 4 July 2012 ([2012] UKSC 28).