Phillips v Mulcaire

The statutory withdrawal of privilege against self-incrimination in intellectual property proceedings should receive its ordinary scope. Once Parliament has clearly withdrawn the privilege, the court need not adopt the narrowest possible construction.

For section 72 of the Senior Courts Act 1981, commercial information means information commercial in character, not merely information capable of being sold. Commercially confidential voicemail information may qualify, but private personal information does not become intellectual property solely because it has financial value.

An offence is committed in the course of an infringement where a continuing conspiracy is being performed through the infringing acts. The conspiracy is therefore a related offence for which section 72 removes the privilege.

The claimant alleged that the appellant had unlawfully intercepted voicemail messages containing private and commercially confidential information. She sought disclosure from him after joining him to civil proceedings against a newspaper publisher. The appellant invoked the common law privilege against self-incrimination because compliance might expose him to criminal proceedings.

Mann J rejected the claim to privilege in [2010] EWHC 2952 (Ch). The Court of Appeal dismissed the appellant's appeal in [2012] EWCA Civ 48, [2012] 2 WLR 848.

The Supreme Court considered whether the claim concerned rights pertaining to intellectual property within section 72(2)(a) of the Senior Courts Act 1981, and whether a possible charge of conspiracy was a related offence within section 72(5).

1. The appeal was dismissed unanimously. Lord Walker delivered the judgment, with which Lord Hope, Lord Kerr, Lord Clarke and Lord Dyson agreed.

2. Section 72 of the Senior Courts Act 1981 clearly withdraws privilege against self-incrimination in the proceedings it specifies. Although the privilege remains an important common law right, the court need not give the section the narrowest possible construction once Parliament's intention to remove the privilege is clear. An excessively narrow interpretation could frustrate the statutory purpose of protecting victims of unlawful commercial conduct. The protection against admitting compelled statements in related criminal proceedings does not produce a perfect balance because disclosure may reveal other admissible evidence.

3. The expression “technical or commercial information” in section 72(5) includes information in which the claimant has rights capable of infringement. Commercial information is information commercial in character. It is not enough that information of another character could be sold or otherwise has financial value. Commercially confidential information falls within the statutory definition even though confidential information is not strictly property.

4. Purely private or personal confidential information does not fall within “other intellectual property” merely because it may be valuable to the media. On this point the Supreme Court disagreed with the Court of Appeal. Section 72 was intended principally to strengthen remedies against commercial piracy and other unlawful trading practices, rather than to cover the whole law of confidence.

5. The claimant's pleaded voicemail material included significant commercially confidential information concerning finances, business transactions, professional relationships, publicity and future career plans. Her proceedings therefore concerned infringement of rights pertaining to intellectual property within section 72(2)(a), although on narrower grounds than those accepted by the Court of Appeal.

6. A related offence under section 72(5)(a)(i) must be committed by or in the course of the relevant infringement. Whether privilege otherwise arises depends on a realistic assessment of charges likely in practice, rather than charges theoretically possible. A reasonable apprehension of prosecution for one non-related offence would preserve the privilege.

7. Conspiracy is a continuing offence. Although complete when the unlawful agreement is made, it continues while the parties intend to carry it out and until completion, abandonment or frustration. Every interception performed pursuant to an agreement to intercept messages occurred during the continuing conspiracy and in the course of the infringement. The possible conspiracy charge was therefore a related offence, and section 72 prevented reliance on the privilege.

1. United Kingdom Supreme Court: The appellant's appeal was dismissed unanimously in [2012] UKSC 28.
2. Court of Appeal: The appeal from Mann J was dismissed in [2012] EWCA Civ 48, [2012] 2 WLR 848.
3. High Court: Mann J joined the appellant as a defendant and ordered disclosure, rejecting his reliance on privilege against self-incrimination in [2010] EWHC 2952 (Ch).