Brazier v News Group Newspapers Ltd

A contractual compromise is construed by applying ordinary principles of construction to its wording and context. A settlement may cover claims of which the claimant is unaware, although the court exercises caution where the language and circumstances do not show that intention. Where a claimant knows that further wrongdoing may exist, but not its full extent, settling a claim framed to include further disclosure and inquiry may compromise the later-discovered wrongdoing. The scope of a compromise is determined by the subject matter of the pleaded proceedings, not merely by the facts then known or the internal organisation of the defendant. A clearly statute-barred claim may be struck out where the limitation defence is bound to succeed.

News Group Newspapers Ltd applied for summary judgment or strike out of two second-generation phone-hacking claims brought by Jeff Brazier and John Leslie. Each claimant had previously settled proceedings concerning unlawful interception of voicemail messages under a Tomlin order settling the claimant’s claim in identified proceedings. The claimants later relied on evidence concerning additional hacking, particularly by the newspaper’s Features Department, which they said was distinct from the earlier News Department or Glenn Mulcaire-related activity.

In Mr Leslie’s case, the defendant also sought to strike out a claim concerning the sale of photographs as statute-barred. The central issues were the scope of the earlier contractual compromises and whether the photograph claim could be disposed of summarily.

1. Compromise of the phone-hacking claims. The relevant wording was contractual. Its meaning had to be determined by ordinary principles of construction, considering the wording and the circumstances in which the Tomlin orders were made. The formal pleadings were central to identifying the subject matter of the compromised claims.
2. The earlier claims were not confined to the activity of Glenn Mulcaire or the News Department. Read properly, the generic and claimant-specific pleadings sought relief for the wider phone-hacking activities of the newspaper and its journalists. References to further disclosure, further information and an inquiry into the full extent of wrongdoing showed that the claim was intended to encompass additional incidents later identified.
3. The reasoning in BCCI v Ali [2002] 2 WLR 735 did not establish a rule that unknown claims could not be compromised. The distinction between complete ignorance and a known lack of information was material. Each claimant knew that further wrongdoing might exist, knew that the full extent was not yet known, and chose to settle before standard disclosure. That known uncertainty did not exclude the later-discovered Features Department activity from the compromise.
4. The late sharp-practice argument in Mr Brazier’s case was not permitted because it had not been properly raised in the evidence or pleadings. In any event, it did not assist: the alleged concealment and uncertainty were themselves matters known and pleaded in the earlier proceedings.
5. The phone-hacking parts of both second actions were therefore barred by the compromises. They were struck out or, alternatively, summary judgment was entered for NGN on those parts.
6. In Mr Leslie’s case, the claim concerning photographs allegedly sold in August 2004 was plainly outside the six-year limitation period. Following Ronex Properties Ltd v John Laing Ltd [1983] 1 QB 398, the claim could be struck out as frivolous, vexatious and an abuse of process where the limitation defence was clear and bound to succeed. That claim was struck out.