Various Claimants v MGN Limited

When a publication claim is struck out as statute-barred, the publication may still remain relevant to an underlying unlawful information-gathering claim. It may provide evidence of the gathering activity, its purpose, and the use made of information obtained unlawfully.

Whether losses following publication were factually caused by, and are fairly legally attributable to, the underlying information-gathering tort is ordinarily a matter for trial. The existence of a separate publication cause of action does not, by itself, prevent such losses from being recoverable under the surviving claim.

The judgment concerned consequential amendments following the court’s earlier decision on MGN Limited’s applications for summary judgment and strike out. The summary judgment application was dismissed, but the publication claims were struck out as statute-barred.

The issue was which allegations concerning publication and post-publication loss could remain relevant to the surviving unlawful information-gathering claims, and how the application costs should be allocated.

1. The articles could remain pleaded as evidence of unlawful information gathering and its purpose. The freestanding publication cause of action, and allegations relating solely to wrongful publication, were struck out.
2. The separate existence of a barred publication claim did not determine whether post-publication losses were caused by the underlying unlawful information gathering. Factual causation and fair legal attribution were matters for trial.
3. The court explained that Gulati recognised in principle that damages for unlawful information gathering could reflect the wrongful use of information obtained by that means, including publication, without creating a separate third cause of action.
4. MGN was ordered to pay 85% of the claimants’ application costs. MGN was entitled to its costs of the publication claims, and the claimants were to pay the costs of consequential amendments.

The judgment followed the earlier judgment reported at [2022] EWHC 1222 (Ch), which dismissed the summary judgment application and struck out the publication claims as statute-barred.