Various 3rd Wave Claimants v MGN Ltd

On summary judgment or strikeout, the court must assess whether a claim has a realistic prospect of success without conducting an incomplete mini-trial. Prior publication does not automatically extinguish a privacy claim, because privacy protects more than secrecy and may include protection against intrusion. Information disclosed in open court will ordinarily attract no reasonable expectation of privacy. However, the court must consider the precise information relied on, whose privacy is engaged, the circumstances of disclosure and the evidence concerning unlawful information gathering. Claims based on an article may fail even though separate claims for unlawful information gathering connected with the article remain arguable.

Large numbers of individuals brought claims against MGN Ltd for misuse of private information arising from alleged phone hacking, private-investigator activity and publication of articles. MGN applied for summary judgment or strikeout in respect of sample articles, principally arguing that the information had already been published, disclosed by the claimant or a third party, or aired in open court.

The applications concerned whether the articles themselves disclosed actionable private information and whether the pleaded connection with unlawful information gathering had a realistic prospect of success.

1. Disposition. The applications succeeded in part. Certain articles were struck out, or summary judgment was given, insofar as they were pleaded as publications of private information. Other articles survived. The court declined to permit a further large-scale series of article-by-article interlocutory applications.
2. Summary judgment principles. The court applied the principles summarised in Easyair Ltd v Opal Telecom Ltd [2009] EWHC 339 (Ch), including the need for a realistic prospect of success, avoidance of a mini-trial, consideration of evidence reasonably expected at trial and determination of a short point of law where the evidence is sufficient. The judge also applied the guidance in Calland v Financial Conduct Authority [2015] EWCA 192 that disputed factual or legal questions do not remove the duty to assess prospects critically.
3. Privacy and prior publication. Whether there is a reasonable expectation of privacy is an objective, fact-sensitive question assessed in all the circumstances. The court applied the approach in Murray v Express Newspapers [2009] Ch 481. Prior publication may be relevant, but does not automatically destroy privacy, since privacy is distinct from confidentiality and may survive public disclosure: PJS v News Group Newspapers Ltd [2016] AC 1081 and Douglas v Hello! Ltd [2008] 1 AC 1.
4. Open justice. Information disclosed in open court will ordinarily not attract a reasonable expectation of privacy. The court applied Khuja v Times Newspapers Ltd [2019] AC 187 and Crossley v Newsquest (Midlands South) Ltd [2008] EWHC 3054 (QB). This disposed of the article concerning Titus Bramble and contributed to the disposal of the article concerning Kieron Dyer’s sister.
5. Separate unlawful activity. Dismissal of an article-based privacy claim did not determine whether unlawful information gathering had occurred. Phone hacking or related activity might independently constitute an invasion of privacy, including where it merely corroborated or developed a story.
6. Article-specific results. Claims concerning Kieron Dyer Article 30, Titus Bramble Article 14, Peter Crouch Article 43 and Peter Crouch/Abby Clancy Articles 44/48 were dismissed or struck out to the stated extent. Claims concerning the remaining sample articles survived, although several were described as weak or ambitious.