Baroness Lawrence of Clarendon OBE & Ors v Associated Newspapers Limited

In civil claims alleging unlawful information gathering, each claimant must prove that he or she was individually targeted. A generic allegation of widespread wrongdoing, or similar-fact evidence, cannot by itself establish the specific wrongdoing alleged. It may provide limited evidential support where it concerns the particular journalist or third-party investigator involved and is combined with other evidence.

The court controls the scope of litigation. Pleadings define its parameters, and disclosure must be necessary and proportionate to resolving the pleaded issues. Train-of-inquiry disclosure is exceptional and must be tightly targeted. Documents held by a claimant’s research team may fall within the claimant’s control for disclosure purposes. Documents showing payments or inducements to potential witnesses may require disclosure where they bear materially on credibility.

Seven claimants brought claims for misuse of private information, and in one case breach of confidence, against Associated Newspapers Limited. They alleged phone hacking, phone tapping, blagging, burglary and the commissioning of private investigators to obtain information unlawfully.

The claims included specific allegations concerning articles or incidents, a similar-fact case, and a broad generic case alleging widespread and habitual unlawful information gathering. At the second case management hearing, the court determined numerous applications concerning redactions, disclosure, further searches, third-party disclosure and amendments to the Defence.

The central issues were the proper role and limits of the generic case, whether further disclosure was necessary and proportionate, and how the court should control the proceedings so that they remained focused civil litigation rather than a public inquiry.

1. Individual proof and propensity. Each claimant bears the burden of proving that he or she was the subject of unlawful information gathering. Similar-fact and generic evidence cannot establish that primary case on their own. Evidence of a journalist’s established propensity may support an inference on a particular occasion, but its weight depends on the circumstances and it will rarely, without more, establish the probability of unlawful information gathering. The relevant focus is the journalist or third-party investigator involved in the specific article or incident, not unrelated wrongdoing by others (paras [42]–[52]).
2. Control of the litigation. Civil proceedings must be confined within manageable and proportionate bounds. The court controls the issues and is not bound to litigate an exceptionally broad generic case merely because it has been pleaded. The focus would remain on the pleaded articles, incidents, journalists and third-party investigators. Any proposed expansion required properly particularised amendments and would remain subject to case-management control (paras [53]–[61]).
3. Disclosure. Redactions may be maintained for irrelevant material under CPR 31.6. The court ordered targeted unredaction where it could enable the claimants to link pleaded journalists’ activities to particular articles and investigate a focused propensity case. Wider disclosure intended to establish the full extent of wrongdoing or the general use of private investigators was refused as disproportionate. Train-of-inquiry disclosure was exceptional and required a specific, evidence-based and tightly targeted application (paras [73]–[78], [99]–[110], [126]–[164]).
4. Specific disclosure and control. Further searches concerning the claimants’ alleged watershed moments were ordered because the issue was important and the absence of corroborating documents could be relevant at trial. Documents held by the jointly instructed Research Team were within the claimants’ control and required proper searching. Documents showing payments or inducements to potential witnesses were also disclosable where they could support an attack on credibility (paras [202]–[208], [228]–[251]).
5. The claimants’ applications succeeded in part. Associated’s third-party disclosure applications and knowledge, Research Team and third-party support applications were granted. Associated’s amendment application was allowed in part. The remaining applications were refused or granted only to the limited extent specified in the judgment (paras [272]–[274]).