Police - Criminal investigations - Remuneration - Trustees in bankruptcy

Andrew v Newsgroup Newspapers Ltd and Ors: Ch D (Mr Justice Vos): 18 March 2011

The claimant sports agent (X) applied for non-party disclosure from the Metropolitan Police Commissioner under rule 31.17 of the Civil Procedure Rules for the purposes of a claim for damages against the first defendant newspaper (N) in relation to the hacking of his mobile phone.

X had commenced the claim against N alleging that his voicemail messages had been intercepted and listened to and that notes and recordings of it had been kept.

X had been one of a number of victims named in the criminal trial of a private investigator (M) and an editor (G) employed by N.

M pleaded guilty to conspiracy to intercept the voicemail messages of a number of individuals including X and was sentenced to six months’ imprisonment. G was sentenced to four months. X sought disclosure from the police of telephone records and notebooks obtained at the time of the investigation.

A new investigation had been launched after the names of further victims had come to light.

The commissioner sought an order to prevent disclosure for three months on the basis that the criminal investigations would be prejudiced and some possible phone-hacking participants would be alerted.

The two main issues were: (i) the relevance of the documents for the purposes of X’s claim; and (ii) the claim by the commissioner that the documents were protected by public interest immunity and the fear that the disclosure would impede the new police investigation.

Held: The court had to ensure that the intrusive jurisdiction to order disclosure under rule 31 of the CPR was not used inappropriately even by consent, Flood v Times Newspapers Ltd [2009] EWHC 411 (QB), [2009] EMLR 18 considered.

The court had to consider the balance of convenience including public interest and had a difficult balancing act to perform between two conflicting public interests, Frankson v Secretary of State for the Home Department(2003) EWCA Civ 655, (2003) 1 WLR 1952 applied.

The competing public interest in the instant case were the prejudice to the criminal investigation and the importance of the documents in assisting X’s case.

Cogent proof was necessary to show that the disclosure would hamper the investigation, Arias v Commissioner of Police of the Metropolis [1984] 81 LSG 2694 CA (Civ Div) applied.

The names of some journalists who were possible participants had already been published and the idea that they would be alerted was fanciful. It was not accepted that it was likely that those individuals did not already know who they were.

The police had had many years to investigate the matter and the commissioner had not shown that the desire to protect the disclosure for another three months was necessary.

No sufficiently strong public interest had been demonstrated to show that the investigation would be hampered by the disclosures.

On the other side of the balance, X’s case could not be tried without the disclosure because the evidence went to the heart of his case that N and M had conspired to obtain confidential information relating to him.

The documents were relevant and without them it might be hard for X to prove his case.

The case was already five years old, a trial date was fixed for 10 months’ time and that date would be jeopardised if the court declined to order disclosure.

Upon undertaking the balancing exercise, the commissioner’s claim for public interest immunity was not made out and disclosure would be ordered.

However, the evidence would be redacted to protect the identities of other phone-hacking victims and some third parties.

Guidance was given on the form that the redactions should take, which was highly relevant for other cases relating to phone-hacking allegations against N.

Application granted.

Jeremy Reed (instructed by Mishcon de Reya) for the claimant; David Hurst (instructed by Farrar & Co) for the defendant; Edwin Buckett (instructed by in-house solicitor) for the third party.