Practice

Pre-trial or post-judgment relief - Requests for further information - Self-incrimination - Privilege

Coogan v News Group Newspapers Ltd and another; Phillips v News Group Newspapers Ltd and another: CA (Civ Div) (Lord Chief Justice Lord Judge, Master of the Rolls Lord Neuberger of Abbotsbury, Lord Justice Maurice Kay (vice-president)): 1 February 2012

Section 72 of the Senior Courts Act 1981, so far as material, provides: ‘(1) In any proceedings to which this subsection applies a person shall not be excused, by reason that to do so would tend to expose that person… to proceedings for a related offence or for the recovery of a related penalty - (a) from answering any question put to that person in the first-mentioned proceedings; or (b) from complying with any order made in those proceedings.

'(2) Subsection (1) applies to the following civil proceedings in the High Court, namely - (a) proceedings for infringement of rights pertaining to any intellectual property or for passing off; … (5) In this section - "intellectual property" means any patent, trademark, copyright, design right, registered design, technical or commercial information or other intellectual property.’

The instant proceedings concerned two separate appeals which were heard together because they raised common issues. The second defendant, M, had been a private investigator engaged by the first defendant newspaper publisher, NGN. In 2007, M pleaded guilty to offences contrary to the Regulation of Investigatory Powers Act 2000 (RIPA) and was sentenced to six months’ imprisonment. The first claimant, C, was a well-known comedian. The second claimant, P, had been an assistant to the well-known public relations consultant, Max Clifford. The claimants each alleged that their mobile telephone voicemail messages had been unlawfully intercepted (hacked) by M. They contended that the messages had been hacked by, or on the instructions of, M and/or NGN and that, accordingly, they had a cause of action in breach of confidence and in misuse of private information. P issued proceedings against NGN.

In 2010, she applied for permission to add M as a defendant. She further sought an order that M swear an affidavit identifying: (i) the individuals who had instructed him directly or indirectly to intercept her voice messages and the voice messages of her colleagues; (ii) the nature of the interception he had been instructed to carry out; and (iii) similar facts about the interception of voice messages of another employee. M did not resist being joined as a defendant but did object to swearing the affidavit as sought on the ground that it would tend to incriminate him because the interception of voice messages was an offence contrary to section 1(1) of RIPA.

Mann J held that, on the facts, prima facie M had been entitled to invoke the privilege against self-incrimination (PSI). However, he concluded that the action was one to which section 72 of the Senior Courts Act 1981 applied and that, consequently, his PSI was removed. C issued proceedings against both NGN and M. The relief he sought included, inter alia, information from M as to the identity of the individuals: (i) who had instructed him to intercept C’s voice messages, (ii) to whom he had supplied information or recordings of such messages; and, (iii) whom he had instructed to hack into C’s phone. In 2011, C sought, inter alia, a declaration that M could not rely on PSI, as he had sought to do. Vos J concluded that section 72 of the 1981 act served to deprive M of PSI and ordered M to provide full answers to the requests for further information. In both cases, the judges had found that the information obtained from the voice messages had been technical or commercial information within the meaning of section 72(5) of the 1981 act. M appealed against both orders, in particular the orders that required him to make disclosure in connection with the messages that he had intercepted (the disclosure orders).

He submitted that the information obtained by M from intercepting the voice messages of P and/or C had not been intellectual property within the meaning of section 72(5) of the 1981 act and, therefore, section 72 had not applied. If, however, the information in question had been intellectual property: (i) in the light of the definition of related offence at section 72(5)(a)(i) of the 1981 act, all of the information which Mann J and some of the information which Vos J had ordered him to provide was not covered by section 72; and (ii) section 72 of the 1981 act was inconsistent with his rights under article 6 of the European Convention on Human Rights, and the court should make a declaration of incompatibility. The appeal would be dismissed.

(1) Technical or commercial information meant confidential information which was technical or commercial in character. In order to be protected in law, and to be characterised as intellectual property, information had to be confidential or had to have the necessary quality of confidence about it. As a matter of ordinary language, ‘commercial information’ meant information which was commercial in character, rather than information which, whatever its nature, might have had a value to someone.

While the prevailing current view was that confidential information was not strictly property, it was not inappropriate to include it as an aspect of intellectual property. Accordingly, unless there was binding authority to the contrary, given the normal meaning of ‘commercial information’, the draftsman of section 72 of the 1981 act had intended that confidential information of a commercial nature would be included within the definition of intellectual property. As a matter of both principle and practice, non-commercial confidential information was within the ambit of the definition of commercial information in section 72(5) of the 1981 act because of the words ‘or other intellectual property’ (see [31], [32], [39], [45] of the judgment).

If confidential information was within the ambit of the definition of ‘intellectual property’ it was hard to resist the logic that confidential information had therefore been treated as being intellectual property by the draftsman of section 72(5) of the 1981 act. At the time that section 72 was enacted, the law of confidential information was routinely invoked in a commercial and technical context and was only very rarely applied to personal or other non-commercial relationships. Since the coming into force of the Human Rights Act 1998, claims for relief to protect rights of privacy and personal autonomy had been brought before the courts and judges had had to refashion and extend the common law so as to ensure that it complied with article 8 of the convention. Further, it would be surprising if PSI could be invoked by a defendant in relation to a breach of confidence claim which related to personal information, but not where the nature and circumstances of the claim were identical save that it related to commercial information. Furthermore, the same information could be commercial in one person’s hands and personal in the hands of another (see [46]-[48], [51], [52] of the judgment).

(2) If there was evidence, normally provided by the claimant, which established that a significant amount of confidential information was ordinarily, or was around the time of the interception, included in his voice messages, then that would normally be enough to justify section 72 of the 1981 act being invoked. ‘Significant’ in that context meant ‘more than insignificant’.

Where a defendant had intercepted a claimant’s voice messages, there had to be a strong presumption that at least some of the information contained in the messages was confidential. Save in a very unusual case that would have been the very reason for intercepting the messages. The fact that there might have been numerically more messages which were not confidential would be more than outweighed by the greater importance of the confidential messages. Accordingly, if a defendant had intercepted a claimant’s voice messages, even where there was a significant preponderance of plainly non-confidential messages, he should nonetheless disclose them as part of the overall disclosure exercise. If, on the basis of considering the messages which he had intercepted, a defendant was able to say on oath that he had received no confidential information from the claimant, then that might persuade the court that section 72 of the 1981 act could not be invoked (see [54]-[56] of the judgment).

On the facts of the instant case, it was clear that the judges at first instance had reached the correct conclusions in finding that the information obtained from the voice messages had been technical or commercial information within the meaning of section 72(5) of the 1981 act. There could be little doubt why P’s voice messages had been intercepted by M, namely to access confidential information, and there could have been little doubt that at least some of the messages which he intercepted would have contained confidential information. Subject to one concern, Mann J’s disclosure order against M should stand.

However, some, possibly many, of the messages would have contained information which, while subject to rights of confidence, had not been rights which P could have claimed for herself or even for her employer, namely private information given to P or Max Clifford by a client. Neither P nor Max Clifford would have acquired any rights of confidence in relation to the information themselves: the rights would have remained with the client. Consequently, it would have to have been the client, not P or Max Clifford, who brought any claim for breach of confidence. Accordingly, it might have been hard to have said that, in so far as it related to the interception of such information, P’s claim constituted ‘proceedings for infringement of rights pertaining to’ confidential information within section 72(2)(a) of the 1981 act. Despite that concern, it was correct for Mann J’s order to be upheld. In any event, P had rights of confidence in relation to the commercial negotiations that she had conducted and in relation to at least a significant proportion of the personal messages. On C’s evidence, most of his messages had been commercial in nature and many of those would have contained confidential information. It was also likely that the remaining messages had contained personal confidential information (see [57], [59]-[61] of the judgment).

The orders of Mann J and Vos J would be upheld (see [83] of the judgment).

(3) Where a person intercepted a voice message on the instructions of a third party, the giving of those instructions could fairly be said to be part and parcel of the interception. In such a case, the third party would be liable for the interception along with the person to whom the instructions had been given. Both parties would be liable for infringement of the victim’s rights in the confidential information in accordance with the principle of common design (see [66] of the judgment).

In relation to the information M had been ordered to give as to the persons to whom he had passed on the information, given that the information in the voice messages had been confidential, and that M had obtained it in an unauthorised way, he had to have committed a further infringement of the claimants’ rights if and when he had passed the information on to an unauthorised third party. In relation to the requirement that M provide information as to who instructed him to intercept, a requirement that M identify the individuals who instructed or asked him to intercept the voice messages of the claimants had not involved the court trespassing outside the limits of section 72 of the 1981 act (see [64], [67], [68] of the judgment).

(4) It was an established principle of community law that a statutory provision which removed a defendant’s right to claim PSI in order to avoid giving evidence in civil proceedings would not fall foul of article 6 of the convention provided that it contained a provision which prevented the evidence being used against him in criminal proceedings (see [74] of the judgment).

If there was any unfairness in the instant case such that article 6 of the convention would be infringed, it would be in relation to any criminal proceedings which might or might not be brought against M in the future. It was only if such proceedings were brought, and if the information which he had provided had been used in the criminal trial against him, that his rights under article 6 would be of relevance.

The claimants’ claim to vindicate their respect for their private lives should not be outweighed by M’s right to a fair criminal trial when it was not clear that there would be such a trial and, even if there was, that it would be unfair. There were many safeguards available to M, including section 72(3) of the 1981 act (see [73], [76] of the judgment).

Per curiam: I would take this opportunity to express my support for the view that PSI has had its day, provided that its removal is made subject to a provision along the lines of section 72(3). Whether or not one has that opinion, however, it is undoubtedly the case that, save to the extent that it has been cut down by statute, PSI remains part of the common law, and that is for the legislature, not the judiciary, to remove it, or to cut it down (per Lord Neuberger at [18] of the judgment).

Decision of Mann J [2010] All ER (D) 182 (Nov) affirmed. Decision of Vos J [2011] 2 All ER 725 affirmed.

Jeremy Reed (instructed by Schillings) for C; Jeremy Reed (instructed by Taylor Hampton) for P; NGN did not appear and was not represented; Gavin Millar QC and Alexandra Marzec (instructed by Payne Hicks Beach) for M; Thomas de la Mare (instructed by the Treasury Solicitor) for the secretary of state for business innovation and skills as interested party.