Gulati & Ors v MGN Ltd

At the pleading and summary-judgment stage, covert wrongdoing claims may proceed on a properly supported inference where the relevant evidence is likely to be in the defendant’s possession. A claimant need not identify the individual perpetrator or possess complete evidence. General evidence of a relevant practice may be potentially probative similar-fact evidence, although its weight and case-management consequences remain for later stages. Criminal character alone does not import stricter dishonesty pleading requirements where the civil wrong is based on acts, not state of mind. The court must avoid a mini-trial but need not accept assertions with no real substance or contradicted by documents. Strike-out or summary judgment is appropriate only where failure is clear or inevitable, or the claim has no real rather than fanciful prospect of success.

Four claimants brought actions against MGN, a newspaper proprietor, alleging unauthorised access to voicemail by journalists or third parties acting for its newspapers. Their pleadings relied on published stories and generic evidence of phone hacking and related practices, including facts from the other claims. MGN sought strike-out of parts of all four Particulars of Claim and summary judgment in the Gibson and Flitcroft actions, arguing that the evidence was inadmissible, insufficient, inconsistent or speculative. The claims had not reached the defence or disclosure stages. The central issues were whether generic and similar-fact material could be pleaded and whether either individual claim had no real prospect of success.

1. Disposition. MGN’s applications to strike out parts of the pleadings and for summary judgment in the Gibson and Flitcroft actions failed.
2. Applicable threshold. Under Part 24 of the Civil Procedure Rules 1998, the court applied the requirement that a claim must have no real, rather than fanciful, prospect of success. Following Swain v Hillman [2001] 1 All ER 91, Three Rivers v Bank of England (No 3) [2003] 2 AC 1, ED&F Man Liquid Products Ltd v Patel [2003] EWCA Civ 472 and Doncaster Pharmaceuticals v The Bolton Pharmaceutical Co 100 Ltd [2007] FSR 63, the court had to avoid a mini-trial. It could nevertheless intervene where factual assertions had no real substance or documentary material made failure inevitable. Covert wrongdoing claims could properly be allowed to proceed where disclosure might materially improve the evidence and the case was more than speculative.
3. Pleading and evidence. General evidence of phone hacking practices was potentially relevant similar-fact evidence. Applying O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534, the first question was whether the material was potentially probative; its weight, similarity, hearsay status and case-management consequences were ordinarily matters for later determination. The claimant did not need to identify the precise perpetrator of a vicarious wrong. Knowledge could be distributed between individuals where malice or dishonesty was not an element. The stricter approach associated with serious allegations in Re H (Minors) [1996] AC 563 and the approach in Telnikoff v Matusevich [1992] AC 102 did not govern these act-based civil claims. The burden of proof remained with the claimants.
4. Individual claims. In Flitcroft, inconsistencies in the evidence did not make the inference of phone hacking worthless or eliminate a real prospect of success. In Gibson, statements made in open court created credibility issues but no quasi-estoppel. Adelson v Associated Newspapers [2008] EWHC 278 concerned the court’s permission to read a statement before it was made, not the automatic effect of a statement after it had been made. Unauthorised listening could infringe privacy even if the claimant had not listened to the messages herself.

The judgment records that the applications first came before Vos J in April 2013 and were adjourned. They were subsequently heard by Mann J. This judgment determined only the strike-out and summary-judgment applications; the separate application to vary a costs order was not decided.