Various Claimants v MGN Limited

Under the Limitation Act 1980, time is postponed for deliberate concealment only where the concealed facts are essential to plead the causes of action actually advanced. The test is whether a valid prima facie case could be pleaded, not whether it could be proved in detail. A claimant need not identify every concealed act of unlawful information gathering where the claim is pleaded compendiously, but a wholly generic claim would not suffice for a materially different underlying claim. Publication of private information is a freestanding cause of action. Knowledge of publication and its private character may therefore start time running even where the source is concealed. Whether later media coverage put a claimant on inquiry is an objective, fact-sensitive issue unsuitable for summary determination when not clear-cut.

MGN applied for summary judgment, alternatively strike-out, in six claims within the fourth phase of the Mirror Newspapers Hacking Litigation. The claims concerned misuse of private information through publication of newspaper articles and through underlying unlawful information-gathering activities, including alleged phone hacking and private-investigator activity.

MGN argued that the claims were statute-barred because the claimants knew, or could with reasonable diligence have discovered, the essential facts more than six years before issue. The central issues were the facts required to plead the causes of action under section 32(1)(b) of the Limitation Act 1980, and whether publication or subsequent media coverage put the claimants on inquiry.

Applications granted in part and refused in part. The freestanding publication claims were held to be statute-barred. Summary judgment was declined on the underlying unlawful information-gathering claims.

1. Relevant facts. Section 32(1)(b) postpones limitation only for facts essential to plead the causes of action actually advanced. The statement-of-claim test requires facts sufficient to constitute a valid prima facie case, not evidence, further detail, stronger prospects of success, or material relevant only to damages or a defence. The approach was consistent with Test Claimants in the Franked Investment Income Group Litigation v Commissioners for Her Majesty’s Revenue and Customs [2020] UKSC 47 and Potter v Canada Square Operations Limited [2021] EWCA Civ 339.
2. Compendious pleading. Although each occasion of misuse of private information is technically a separate cause of action, the gist of repeated concealed wrongdoing may be pleaded by reference to numerous occasions in a defined period and specified types of unlawful conduct. The claimant need not identify every individual occasion before disclosure. The broader approach in The Kriti Palm [2006] EWCA Civ 1601 did not require otherwise.
3. Publication claims. Publication of private information without consent was a freestanding misuse. The claimants knew the essential facts when the articles were published. Concealment of the source, the underlying unlawful activity, or evidence supporting aggravated damages did not defer limitation.
4. Underlying UIG claims. Knowledge that private information had been published, or that something unusual had occurred, did not establish knowledge of the pleaded institutionalised phone-hacking, blagging and related activity. A bare allegation that MGN obtained and processed information would have been a different and inadequate claim. The claimants had a real prospect of proving at trial that they lacked actual knowledge of the essential facts.
5. Constructive knowledge and publicity. Reasonable diligence required objective attentiveness to matters putting the actual claimant on inquiry, followed by reasonable but not exceptional investigation. The claimant’s actual circumstances were relevant, but personal traits such as naivety or inattentiveness were disregarded. The effect of media coverage was cumulative and fact-sensitive. Whether the Gulati judgment and surrounding publicity put these claimants on inquiry could not fairly be decided summarily.

This was a first-instance decision on MGN’s applications for summary judgment or strike-out in six sample claims in phase four of the Mirror Newspapers Hacking Litigation. The judgment records earlier proceedings in related claims, but no appeal from this decision is stated.