Various Claimants v News Group Newspapers Ltd

The decision whether to order a preliminary issue is a fact-sensitive case-management decision. The court must consider the overriding objective and what is just and convenient in all the circumstances. A preliminary issue involving disputed facts, witness credibility and substantial evidential overlap requires particular caution. The court should assess whether it will save time or costs, dispose of an issue, assist settlement, cause delay, duplicate evidence or prejudice the fair conduct of the proceedings. A limitation issue should generally be determined early where that is likely to avoid the investigation and trial of stale claims. That policy does not justify a late preliminary trial where substantial preparation has already occurred and there is a real prospect of a second trial and appeal.

News Group Newspapers Ltd applied for a direction under Civil Procedure Rules 1998, rule 3.12, that a preliminary issue be tried in 42 outstanding claims in the mobile telephone voicemail interception litigation. The proposed issue was whether the claimants could rely on section 32(1)(b) of the Limitation Act 1980 by showing that they did not know, and could not with reasonable diligence have known, facts sufficient to justify pursuing worthwhile claims more than six years before proceedings were issued.

The proposed trial would assume the pleaded breach and deliberate concealment allegations, but would require substantial factual findings about each claimant’s actual and constructive knowledge. NGN sought to vacate the fixed January 2025 trial of all issues and substitute a six-to-seven-day limitation trial in selected claims.

1. Application dismissed. The power to order a preliminary issue is now contained in rule 3.12 of the Civil Procedure Rules 1998. Its exercise is a case-specific case-management decision governed by the overriding objective and what is just and convenient in all the circumstances.
2. The questions identified by Neuberger J in Steele v Steele [2001] CP Rep 106 provide a useful check. They include whether the issue will dispose of the case or an aspect of it, reduce preparation and trial costs, depend on agreed facts, fetter a just result, increase costs or cause delay, prove irrelevant, encourage amendment, and whether ordering it is just. They are not exhaustive and are not all directly applicable where the issue is principally factual.
3. The proposed section 32 issue was a mixed question of fact and law, principally involving disputed evidence about each claimant’s actual knowledge and reasonable diligence. It would involve overlapping witnesses and evidence, with a risk that findings about reliability or honesty would have to be made before the court had heard the witnesses’ full evidence. The caution expressed in McLoughlin v Jones [2002] QB 1312, Bond v Dunster Properties Ltd [2011] EWCA Civ 455, Gorton v McDermott Will & Emery [2018] EWHC 2045, Mather v Ministry of Defence [2021] EWHC 811 (QB) and Bindel v PinkNews Media Group Ltd [2021] EWHC 1868 (QB) was guidance rather than an inflexible rule.
4. Although limitation issues should in principle be dealt with early to avoid the investigation of stale claims, that benefit had substantially diminished. The application was late, extensive preparation for the January 2025 trial had already occurred, selection of representative claims would be difficult, and a successful preliminary issue for claimants would not remove the need for a trial of the remaining generic and claimant-specific issues.
5. There was no sufficient evidence that determining limitation first would promote settlement. The likely consequences were wasted preparation, delay of up to two years and a real prospect of two trials and appeals. Those disadvantages outweighed the advantages of substituting a preliminary limitation trial for the fixed trial of all issues. NGN’s application was therefore dismissed.