Disclosure

Various claimants v Newsgroup Newspapers: Chancery Division: 12 July 2013

The instant proceedings arose in the course of allegations of phone hacking made against the defendant company, NGN. The claimants made an application for an order providing for disclosure by the Metropolitan Police Service (the MPS) of certain information relating to phone hacking said to have been conducted by journalists engaged by NGN. The claimants, who had been victims of phone hacking, were unlikely to know that they were victims until someone else told them so, and then they could not know the extent of the apparent wrong unless someone else told them of it. They also sought evidence of the scope of the involvement of the phone hacking within NGN. They applied for an order for disclosure under Norwich Pharmacal Co and others v Commissioners of Customs and Excise (see [1973] 2 All ER 943).

There was no real dispute that the nature of the information sought was not within the scope of Norwich Pharmacal. The principal issue was about whether or not the MPS was sufficiently involved in the wrongdoing to come within the requirements of Norwich Pharmacal. NGN contended that, since the MPS had not been involved in the original wrongdoing at all, it was not possible to exercise the jurisdiction. NGN submitted that there was a floodgates argument, in that many bodies had an information-gathering function, including public bodies such as the police and private bodies such as employers. It submitted that if the police's function as an investigating body which acquired information made it sufficiently involved for the purposes of Norwich Pharmacal, then all those other bodies would be similarly vulnerable. The court further considered whether it would be appropriate, in order for the claimants to have the information they needed at an earlier, rather than a later, stage, to start with a thinly-pleaded action and wait for discovery as the case progressed. The application would be allowed.

(1) On the evidence, the material which the MPS was prepared to make material was material that would be appropriately sought under a Norwich Pharmacal order. It was not all material going to the identity of the alleged wrongdoer, but was material going to the extent of the wrong, and its proof. It was not available elsewhere (see [51] of the judgment). Norwich Pharmacal Co v Customs and Excise Comrs [1972] 3 All ER 813 applied.

(2) The MPS was not a mere witness. Its engagement with the wrong committed was such as to make it more than a mere witness and therefore susceptible to the court's jurisdiction to make the order. It had a duty to acquire information about the offending act, albeit not for the benefit of victims, and had provided information which, if it had been a mere bystander, it would not have had to have volunteered. It did so by informing victims that they were victims, and then disclosing a limited amount of information whilst informing them that there was more. The floodgates argument would be rejected, since the court did not proceed solely on the footing that the MPS' investigatory activities made it sufficiently involved to get past the relevant threshold question in Norwich Pharmacal.

Even if the threshold had been crossed, it did not follow that there would be exposure to vast numbers of applications. It had to be remembered that one of the requirements of the exercise of the jurisdiction was that the material was necessary to the prosecution of the claim in the sense that the claim could not be properly prosecuted without it. That was unlikely to be true in a lot of cases. It might be that the relevant body had information that was useful, but that was not sufficient. The court could not control the jurisdiction at the level of discretion (see [57] of the judgment). MPS had participated in, facilitated or been involved in the actual wrongdoing in the instant case (see [57] of the judgment). Norwich Pharmacal Co v Customs and Excise Comrs [1972] 3 All ER 813 applied; Ricci v Chow [1987] 3 All ER 534 considered; AXA Equity and Law Life Assurance Society plc v National Westminster Bank plc [1998] CLC 1177 considered; Aoot Kalmneft v Denton Wilde Sapte (a firm) [2001] All ER (D) 382 (Nov) considered; Ashworth Hospital Authority v MGN Ltd [2002] 4 All ER 193 considered; Mitsui & Co Ltd v Nexen Petroleum UK Ltd [2005] 3 All ER 511 considered; R (on the application of Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2008] All ER (D) 123 (Aug) considered; Rugby Football Union v Consolidated Information Services (formerly Viagogo Ltd) [2012] All ER (D) 236 (Nov) considered; R (on the application of Omar) v Secretary of State for Foreign & Commonwealth Affairs [2013] 3 All ER 95 considered.

(3) What distinguished the phone-hacking cases from most claims was that the victims, who were the claimants, were unlikely to know that they were victims until someone else told them so, and then they could not know the extent of the apparent wrong unless someone else told them of it. In those circumstances, it could not be said that it would be better to start with a thinly-pleaded action and wait for discovery. The confidentiality of other victims had to be looked to, but that was protected by confidentiality regimes and redaction, and the extent of the proposed disclosure did not go further than was appropriate. It was clearly proportionate that victims should be able to have the relevant information at an earlier, rather than a later stage, and the scope of the information was clearly not disproportionate to the needs of the victim (see [62], [64], [65] of the judgment). It would be right to make a Norwich Pharmacal order in favour of individual apparent victims in relation to the information sought (see [67] of the judgment). Norwich Pharmacal Co v Customs and Excise Comrs [1972] 3 All ER 813 applied.

Hugh Tomlinson QC, Julian Knowles QC, David Sherborne, Jeremy Reed and Sara Mansoori (instructed by Akins Thomson) for the claimants; Dinah Rose QC, Anthony Hudson and Ben Silverstone (instructed by Linklaters LLP); Jason Beer QC and Jonathan Dixey (instructed by Metropolitan Police Service) for MPS.