The Duke of Sussex & Ors v MGN Limited

The court confirms that large-scale unlawful information‑gathering (including blagging and the use of private investigators) and targeted voicemail interception were used by or for national tabloid titles, but that the intensity and methods varied over time: (a) limited unlawful activity existed in the mid‑1990s; (b) unlawful searches and extensive use of voicemail interception were widespread and habitual in the period c.1999–2006; (c) from 2007–2011 such practices continued but generally at reduced intensity and with greater concealment. Deliberate concealment by editorial staff and partial non‑disclosure by MGN and some corporate officers delayed public detection of the full extent of the practices.

The four claimants (the Duke of Sussex, Ms Nikki Sanderson, Mr Michael Turner and Ms Fiona Wightman) sued MGN Limited for damages for misuse of private information arising from voicemail interception and other unlawful information gathering ("UIG") by or on behalf of Mirror Group newspapers. The trial considered generic allegations about the scale, methods and period of UIG and the role of private investigators and freelance sources, and then decided exemplar individual claims drawn from that wider course of alleged wrongdoing. The court heard extensive documentary and witness evidence about PI invoices, keypad conversions, editorial communications and the prior [2015] EWHC 1482 (Ch) findings. Central issues were: the extent of UIG before 1999 and after 2006; whether boards and in‑house lawyers knew of and concealed wrongdoing; and, for each claimant, whether particular episodes of UIG or voicemail interception were proved. The court made detailed findings of fact, examined disclosure practice, and resolved claims for damages subject to limitation arguments.

(1) Overall disposition

(1) The court finds that unlawful information‑gathering by or on behalf of MGN took place. Using the best available documentary and oral evidence, the judge held that: (a) limited UIG existed in the mid‑1990s; (b) UIG together with extensive and habitual voicemail interception was established across the three national titles in the period c.1999–2006; and (c) VMI and other UIG resumed or continued thereafter to a significant but reduced extent up to about 2011, carried on with increased concealment and use of sub‑contractors and altered identities for suppliers.

(2) Private investigators and suppliers

(2) The court examined disclosed PI invoices and ancillary material and reached the following principal conclusions about specific suppliers (summary): TDI/ELI/BDI, JJ Services (Whittamore), Newsreel (Jonathan Stafford), Avalon/Rob Palmer and Southern Investigations (and certain aliases) provided or facilitated a very substantial volume of UIG and were commonly used to obtain material that could not be lawfully obtained by public searches. Other providers (eg C&L/System Searches, Searchline, Severnside) carried out many searches, some legitimate, but a substantial proportion of their work for the titles was used as the first stage of unlawful enquiries. Certain freelance agencies and overseas stringers provided material that on occasions was obtained by receiving unlawfully‑gathered information; others provided legitimate pictures and open‑source research. The court made supplier‑by‑supplier findings in the attached PI schedule.

(3) Knowledge and concealment

(3) The judge concluded that the MGN in‑house legal team and a senior executive director (the group legal director) knew, from about the early 2000s and certainly by 2003–2007, of unlawful information‑gathering at the titles and of risks of criminality; they failed adequately to investigate and to escalate matters to the board as a whole. The CEO and group legal director adopted a "forward‑looking" stance after the Information Commissioner reports and the arrests in 2006, and the board were not given a full picture; the evidence justified findings of concealment and of selective or incomplete disclosure to third parties and regulators. That concealment materially delayed public recognition of the full extent of wrongdoing.

(4) Individual claims

(4) The court heard representative exemplar claims. It found that some of the sample articles and payment records relied on by the claimants were proved to be the product of UIG or VMI (the judgment identifies each such article and invoice, and explains the reasoning and inference‑drawing). Findings on individual targets varied by time and supplier: some articles were proved to result from voicemail interception or blagging, others were not. Where the court could not trace provable unlawful sourcing the claim failed in respect of that article.

(5) Limitation

(5) The court applied the Limitation Act 1980 s.32(1)(b). A claimant is required to be "reasonably attentive" and to take reasonably diligent steps to investigate. The judge held that a reasonably attentive person in the claimants' respective circumstances could with reasonable diligence have discovered a worthwhile cause of action against MGN by late‑2014/2015 on the available public material and police and inquiry activity; accordingly a number of individual claims were time‑barred. The judgment applies the modern case law on s.32 (notably FII, Gemalto and OT Computers) and gives a fact‑sensitive account of when the limitation clock should start in each exemplar case.

(6) Remedies and damages

(6) The judge awarded damages in the exemplars where liability and limitation were established. Awards follow the structure approved in Gulati (separate assessment for intrusive/hacking activity, and for consequences including distress caused by the later use or publication of the material), with adjustments for the particular facts of each exemplar. The judgment describes the sums awarded and, in addition, assesses aggravated damages where corporate concealment and senior knowledge made the invasions more serious. The principal awards appear in Part XII of the judgment.

(7) Disclosure and conduct

(7) The judgment records serious failures and shortcomings in MGN's historic disclosure to Regulators, the Leveson Inquiry and in earlier litigation (notably Gulati); it finds that important materials were not made available earlier and that corporate disclosure practice was defective.

(8) Orders and next steps)

(8) The court (i) determines the exemplar claims as set out in the operative paragraphs; (ii) awards damages to successful claimants (summaries are set out in the judgment); (iii) records that other claims in the same wave may be affected by the generic findings; and (iv) makes consequential directions about costs in the manner stated in the operative order.

not stated in the judgment.